be taking the first ten minutes to buy that argument with ten minutes each of us would have ten minutes i would like to reserve a little bit of my ten minutes for rebuttal so i'll take about eight minutes initially right i'd also like to start your honor with focusing on as the court knows the procedural history in this case is somewhat complicated and i don't want to review it all but i would like to focus on the second issue that we raise our voices which is the fact that the district court effectively denied mr cantor of full and fair hearing on his motion for a new trial when the judge is real allowed the witness is essentially what this case comes down to is a conversation that mr cantor had while incarcerated with one of the primary coast humors in the fraud that's a lesson this case john sarabia we call that in our brief the taft conversation that conversation was relayed in the form of mr cantor's declaration to the district court and presented evidence being hearing the first way was to allow him to invoke the fifth amendment privilege to begin with and to not find that he had waived the right when he had pled guilty and when he had signed a cooperation agreement just as a reminder to the he said that they had arranged for it before hand and so he wasn't going to allow them to look at it look into it now i think the government counsel in that case it said that she would have to  that she didn't foresee a problem with that and that makes sense and i think they're taking a different position now on an appeal which is that you know he shouldn't obviously the this is a court did not err in that and that perhaps they would not have gotten immunity for him but the record there insufficient in our opinion hearing and that was that he decided that it would not be material of this person's testimony that he didn't allow to be heard would not have been material to the trial and we obviously take issue with that because was primarily circumstantial evidence it was people who had observed him there was no person involved in this alleged fraud that was able to bring in any statements of mr chancellor or any information said it is why you know why he didn't tell me had it's not you know different ways that we were hoping to be able to examine johnson arabia so there was information there about that the c law with respect to the fifth amendment is such that there should there needs to be a basis by which the defendant may be actually the witness may be incriminating himself and in this case no record was made about on what basis would john a fifth amendment privilege there was a blanket implication as i mentioned earlier and there was also no conversation about how he would have incriminating himself having i mean as the court knows the trial and   in two thousand and three and so this was long long ago that he would have been convicted and sentenced and already served his time counsel can we look at this new incident i think we can also look at yes i think we can look at it as as newly discovered evidence as well our first position is that it's new evidence because mr sarabia obviously mr cantor did not know in this conversation with the government before hand that he or us he would  sarabia trial is because he didn't know about this conversation and his exoneration is because it was a reduced to a memorandum interview with the government by the government and so i think that's different where mr cantor did not have he's not the court's decision does not take us humorist as codefendant and i think that it is a difference when there is a rule that's limiting the defendant's ability to bring forth evidence newly discovered evidence as to their innocence and i think he would be involved in a collateral a parallel scheme called century group but let me talk about the six case first i believe the gig's case doesn't apply in this case for a number of reasons because mr lethal sarabia did not sit back and wait to be convicted to come forward later and then exonerate his codefendant he pled guilty to eighteen of the twenty two counts and basically offered to government and the court to submit the final four counts to the court for a battery of sentencing which essentially is pleading guilty and the government does not accept that but the he still pled guilty to eighteen of the twenty two counts and he stood trial with nisco he and the only purpose was that i believe one of the reasonable inference was judge that he could not testify because the government knew that at the time he was arrested by the government agents he specifically told them the disco he was not involved in the in the scheme of the fraudulent scheme and we also know that from affidavit the during the trial period he sent a letter to the trial judge judge real telling the judge that this coheed he was not involved that was it was never made available to the defense i found no case that says the brady applies to a trial judge but it seems to make sense commonsense the other thing about this case is that the reason leo's to refuse testimony was so critical was because that we've been discussing was was specifically suppressed by the government from the trial and if he had been allowed to testify miscall he would not have needed the testimony of leo sarabia so let me just go attorney not to make a memorandum of that meeting this was thirty days before trial the attorney for john sarabia came forward and testified under oath that he had been threatened by the u s attorney after the trial to withdraw the cooperation agreement with mr sarabia because he didn't cooperate against ms cohesive and even the u s attorney in her affidavit said well he didn't say that she was not involve said he said that she didn't have any knowledge of her involvement and then the u s attorney said well you had to know because of your role in it so under review the theory either under mr sarabi is you of the of the meeting or under better evidence could you have and this man is a hero in one sense he was testifying at first to the government while he still had a plea agreement which was later threatened to do withdrawn from him now what a judge very real after hearing all this evidence finds he says all you've done is accuse and accuse and accuse that's all you've done the accusations that you make are totally without evidence are totally without evidence  they'd have to be careful not to talk around because he about the fraud so there was it was obvious that john and leo stray both knew whether could he go he was involved so the the other thing about his the testimony of leo was corroborated by john's testimony so we have another reason that i don't think that big supplies but the real interesting one is that leo says that the reason he didn't testify at the trial was because of the behavior of judge real and is manifest the judge real if you look at and we've asked you to court to look at some of the earlier earlier briefs on the first appeal any judge real viciously cross examined co he he asked her whether or not the other witnesses were lying was screaming at her and fine he says after excusing the jury you have to give a tour in plain language and if someone testifies here that something happened and she says it didn't happen judge real knowing that he faced that he faced sentencing by judge real so i mean the government says that this would swallow up all the exceptions in this case no it doesn't this court or the previous appeal already decided that it was misconduct they just somehow found that it was cured how i don't know because the opinion doesn't set forth the what he says or the curative instructions and of course you have to remember that  instruction goes the next day in the jury and judge real scored the juries are not allowed to take any notes they're not allowed any read back so how they could figure out what the judge means when he says well yesterday i asked a few of mr inappropriate questions and i'm sorry about a quick you're the one to judge the credibility of witnesses so that's what leo sarabia was was facing now deeds before i get back to you john let's talk about big for second discovered evidence and then it cites a bunch of cases that leading case would be jacobs with judge friendly supposedly said that he didn't say that he says that they should be viewed with skepticism of course it should be  beyond that's beyond belief now what you do have in all these cases are ninety five percent of these claims are bogus they're obviously scams and so what the court seems to have done the courts say well we just dismiss evidence we should even get into that issue should we would say we don't care with the co defendants that we don't care how credible they are we're not going to allow we'd rather have innocent people convicted that have the discomfiture of motions for a new trial a single bank that write a single organization right through to the needed of specific bank account of three but not all of the counts on that one the jury came back three times for more instructions there is no direct evidence that she knew the scam was this leo sarabia would advertise that for three hundred dollars you can get a credit card people would send in three hundred dollars they didn't get credit cards he would tell people that we were sending credit cards from the bank the processing centers and so forth so the whole issue was whether miscall he knew that this that there was no credit cards being sent out it's a very simple thing everything else you do with the business is consistent with you know instances you're working the phones you're doing whatever you're doing so this is a case where we've been submitted to the judge's discretion you know letters of character polygraphs everything to convince the judge that this motion for a new shell should be granted on this something that that is more open so this is a ver both say she wasn't part of the so just arabia was willing to come in i guess his own best interest and swear to that under oath in front of judge real and it was dismissed out of hand he was promised twelve months and it refers to the the record there so that's i mean the judge i'm with i was astounded when i heard and knew what the evidence was it just was beyond my comprehension that a judge could not grant a motion for a new trial i mean even if you wanted to cover for the u s attorney thing it's not a it was a mistake how could you have that kind of testimony and what's very interesting is later when john sarabia was let sentenced the u s attorney took the position that he fully cooperated and stuck with a twelve month recommendation even though they said earlier that he committed perjury in front of judge real now why would they do that i think they did it because of cancer because really they did not want to open up the ball the the the can of worms because they knew there was a similar meeting involving cancer  about ready to try david canter and he tells the u s attorney he's not in hong then cantor gets convicted john sarabia the cooperators not even called him either trial why would you make a deal over twelve trial they introduced the prosecution introduced evidence about co he supposedly involvement with century group and it's not convict of the century group that's right they've got i'm so it doesn't matter yes yes it structure right and the reason we know it is because that's what the government claimed that the trial they put up a motion in to introduce evidence that you had that over a century group even let you in work there and because they socialized after they and vice president of pacific bank or that she ran and operated the mail rooms that she had employee interactions and hired and trained employees that she handed out leaves to the employees that she ended up paychecks the employees that she was very in fully aware of the customer complain correct yes of the three scheme she was convicted and i think is that by the with really pointing out she was convicted consistently with respect to the operation of pacific bank calm for the period of september of two thousand and all of the evidence i've just was already the subject of the second new trial motion which was denied by the district court in which this court already on the first appeal of muskogee he affirmed so really we're talking about whether this so called new evidence that it's your view that the obvious statement specific as to mr he is not involved in this appeal correct your honor that was already denied and if previously it's already been found that when john a very credible or credible testimony of employees of the fraud who said that he was an equal partner with saurabh with legal sorabjee in the business that he directed the day to day activities of the employees they say he was responsible for closing deals that he directed telemarketers to forge third party signatures on documents and also did so himself that on one instance at least he laughed off customer complaints there were also at least there were at least two victims whose testimonies we've described in our briefs who testified that they spoke told and paid by mr cancer to pretend that he had invested in the business to encourage other investors to put money and that's under speed evidence and then of course then there was cantor's own false testimony about his responsibilities and what he did at the essentially even the district court found that sentencing is i've never in my experience in thirty seven years on the bench ever heard anybody who was so fast ily so much so it cannot be then that johnson coming forward at this time would have changed the result and for these reasons in the new tri motion should be denied in the brady claims should be should all was properly denied even if the court doesn't want to engage in that weighing in calculus as to whether the result would have changed frankly what's being offered here with respect to the new trial motions is not newly discovered thirty three which is that in order for evidence to be to get a new trial it has to be new and it has to be new insofar as it was reasonable it was discoverable through reasonable diligence of the defendants all the dicks clarified is koestler's ought to be treated differently simply just it makes no sense because still a customer would have that exact same reason for not testifying previously which would be the assertion of fifth amendment privileges and so the so called extension of days if that's what one wants to characterize it i proper here so again the leo in john's ravi declaration simply are not new evidence that could be that should be considered briefly i should talk about the fact that also no brady violation occurred here after  was involved in the new century group and indeed also subject to cross examination who testified at the evidence your hearing was mr johnson is attorney he said look the memoranda of an interview that were produced by the government in litigation were accurate and nowhere in this manner in an interview to the indicate that john true obvious that by the way david cantor wasn't involved in any century group so the new brady violation occurred here starting then finally to with with the it was up to the defense counsel then i think to write in the issue and ask appropriate questions to show that the fifth amendment was improvidently or improperly invoked and moreover even if they were mean and there's no showing us silly to the district court was necessarily wrong to take effectively a blanket implication about the situation where the prosecution is willing to offer immunity to the witness and the judge just as you know no the time to do that if one looks at the transcript your honor and quite frankly that's not precisely what happened definitely one of the governing council said look we can look into immunity and let me go upstairs but i need approval immediately on the heels of that the other government prosecutor says wait a minute before we go down that road let me hear a proffer by the defense as to what it is that john's robbie is going to say and i think that's the heart of the matter is it doesn't really matter whether john's robbia was or was not going to immunize what he's going to say because the district court as we started out as i started off my argument probably deny these motions because whatever johnson would have said even according to the defense proffers would've made a difference it wouldn't have made acquittal likely and so whether or not there was an  with respect to stopping the proceedings or maybe they should have continued to and sort of litigate the immunity issue it doesn't matter at the end of the day the new trial motions wouldn't have and were properly not pointed as well as the brady motions because the result conclusory that but david cancer had no involvement or didn't know of the fraud in the new century group that was the proffer and quite frankly if that's the proffer and that was the best cases the fact the matter is that you can commentary on one another defendant thought so especially with strictly a fraud is wholly irrelevant and inadmissible so again the proffer in that's again i think a proffer i would assume is defend its best hope of what the so called one last thing with respect to the notion that leo's declaration with respect to coach he is newly discovered evidence again the digs case i think it makes very clear that it ought not to be newly discovered and this particular case this is not a case where john is to review is coming forward of his own volition in quite the contrary which is what was shown at the benching hearing he's actually not willing to come forward and discuss what he told mr cantor at ta hoping would come forward and this is not a surprise to mr sarabi might have some relevant information it's a surprise that she's it's not surprising he's not that he was out there but it's a surprise a huge surprise that he would come forward and be honest and say that mr cantor did not know about the fight in the cent i think it's important to understand the relationship in other words we raised the real sarabia that's the third going for the trial and made the arguments there that it was manipulation that prevented us from getting the us reagan that would take it outside of the issue about whether to john's review and cantor we argue that we have to revisit the other evidence that we had earlier because the change of now you have the government doing the same thing with respect to a parallel defendant so i think we have your argument in mind thank you thank you the case out of united