to emphasize a few of the facts with respect to the origins of this case this guy neon was educated at our g m order run schools as an adult she maintained a close relationship with our  nuns and a close relationship with a catholic church was very involved in the catholic church in positive ways in november of two thousand and eight doesn't that hurt you on the abuse of trust issue to extend to emphasize all of these relationships was in our g m sister and was living in a convent in iraq i don't care i don't understand where you're going i don't know where you go and what your argument what's the point where i'm going with this is that the government charged in the indictment and what they've alleging there briefing with the argued throughout their case is that at the or two thousand and eight meeting visit miss gangly on set out to defraud the r d m sisters and when you look at the circumstances at the outset there that seems implausible reading of those circumstances but doesn't the government have to prove that she intended from the outset to defraud them in order to convict her frock that's what they charge in the indictment and that's what their case was at the outset here and that there are two there their first two of their three counts were just made an argument that there was no intent to deceive or defraud at the at the outset is that one of your defenses that you argue to the jury in this case why i believe the defense generally was it is not one it answer my question was that argument made to the jury ye where is that the excerpt by believed in closing was based on the fact that she didn't intend to deceive it was the defense was completely about whether or not she had the intent to deceive it wasn't that some of these events are many out in tehran money from the from the outset from the outset did you make that distinction we're going i wasn't trial counsel but i would so you know i know you don't you don't you don't know what the defense was no my recollection of the record is she never intended to deceive and that she got it because her business was in disarray she got behind on her business account she spent this money she scrambled to try to complete the deal in the spring of two thousand and nine and she couldn't make it happen so it wasn't the facts that were disputed the core fact is they also help a zero win what the precise assignment of error is that you're making or you challenge i don't know you are you challenging the use of the model instruction three point one six on intent is that is that where we're going on this no what i'm trying what i was trying i see two issues here the jury instruction issue and the failure to order c g a funding for the witnesses are a third issue now it's the first it's that second issue that you're on to mention that i'm trying to focus on here and my point goes egypt which issue is that you're trying to focus on it's playing air because the district court was specifically told that this key witness was not being called because miss game young can afford to pay him and the district where is where is there any authority at all for the proposition that under these circumstances a judge court's case and alan which says when a fundamental constitutional right the violation the fundamental constitutional right what the fundamental constitutional right to present a defense of she had counsel the counsel counsel didn't record counsel didn't request money or time of your time but the funding sporty right yes but it did come ever asked the district court to provide funds for dr sporty no ok so why is the district court entitled to think well maybe i would have called dr sporty maybe i wouldn't have but this clearly is a strategic call by counsel but what the district court said is i understand money is an issue money is an issue counsel repeatedly said i'm not calling this witness because she can't pay the witness well how can we know that is there is there anything on the record that shows what this six and dr franklin is that sixty seventy eighty one those reports were attached to the sentencing memorandum but the government had been provided those reports more than a year before trial the point is the district court i told this is the reason the witness is not being called and indicates understanding he says i understand money is an issue money is an issue at that point under glass and allan the district court has a duty to intervene i'm not saying that defense counsel did to the district  sporty was going to say yes you asked for a profit ok but you know something we have counsel all the time who would who would if they had unlimited funds would bring in all kinds of witnesses to testify on their behalf because it had unlimited funds sh to hire to half a dozen doctors sporting us but this isn't a matter of unlimited funds it's a matter of she'd actually doctors forty three been paid for all of his back you're here you're here on plan or if it didn't occur to council to ask for the money why does that have to occur and it is error for a district court to fail to volunteer it well i think the closest parallel is is the bear case in which counsel didn't ask for a public authority defense but nevertheless because it was so obvious that that was the defense the district court was obligated to a spontaneous give a public authority instructions for the book that goes to jury instructions this is providing money to hire witnesses well i guess i don't know i can only say in the end i can only come at it from my perspective when when i first met mr gandhi on post trial and she told me this happened and that her key witness was not presented because she could not pay him i was shocked it would seem to me that when that is brought home to the district court that is your argument isn't your best argument ineffective assistance of counsel and not plain error on the part of the district court well then i'll bring in ineffective assistance of counsel if i need to claim if i need to the problem is that meanwhile miss going on is sitting in custody and i moved her bail pending appeal and i moved from bail pending a twenty to fifty five she got a thirty seven month sentence and meanwhile she's going to do all that time before i get to the twenty to fifty five and i don't think the do support is blameless here i think when the district court is told by defense counsel i'm not calling this witness because i can't pay the district court at some point as an  zero six eighty one of the crew of the eighteen u s c the criminal justice act yes and that starts up words upon request i'm not again i'm not saying the defense counsel should have made the request but i'm saying that there comes a certain point that rather than the district court saying i understand money is an issue in washing his hands of the situation the district court should intervene and do something it's this court is not just sitting there watching things happen without any responsibility when the defendant's fundamental constitutional right to present a defense is being denied because she can't pay the last little bit necessary to call or psychiatrist the district court in fire and say look what's going on here you can apply for c j funds most what was the proper what was the proper the judge  to that was attached to the motion in limine a which effectively satisfy the will twelve point two notice that was filed i think in september of two thousand and eight yes the the initial report from doctors forty was attached to a filing there was there were a few oral proffers that were made throughout this process as defense counsel wavered between them going to call not going to call doctor's or the issue of these two a sponsor the obligation of the judge notwithstanding any request to order c j funds to be expended for a witness now i think the best case is pr te supreme court case of blacks or in this court's case of allen which that the context will different there it's that there's an obvious conflict of counsel issue that's brought home i believe those are the words in class or when this fundamental fairness due process issue is brought home to the district court the district court has a duty at that point to inquire here the obvious inquiry would have been well hold on a second counsel dia realized that you can apply for c j funs here this person's indian  see should not present prevent her from presenting her defense instead the district court said i understand money is an issue i mean it seems fairly glaring to me that a federal district court judge at that point has to do something rather than let that go on again i'm not saying the defense counsel is blameless i think he shares plenty of blame here but you know meanwhile miss canyon sits in custody and by the time a twenty to fifty five is file it all becomes relatively meaningless at least as far as the three years of sitting in custody this the second issue i'd like to address briefly seeing is that has very little time left as a jury instruction issue the thrust of that issue was that there were three errors that combined basically told the jury that they could convict if they found miscarry on y or concealed or admitted failed to disclose facts to provide the instructions to the to the trial judge the government that the instructions were erroneous and accepted them for some strategic reason there's no indication that that's what's what occurred here i mean if the predicate defense counsel themselves submitted the running once again with situations where it was not obvious to counsel but you want to reverse because it should have been obvious to the judge well again it's plain air yes i can't i'm certainly not here to defend defense counsel's performance in this case if you look at some of the other ten who didn't want the instructions that were provided the not the ninth circuit model team forty three does not set out to offenses it doesn't get out of that but we corrected we corrected those instructions today i believe that there's still a mistake in the model instructions which seems to me to be a good reason to deal with this and point it out rather than it might be might go to the question as to whether it was plain well it's plain based on case law and that's what the supreme court has been around for a long time someone ought to get around to fixing the instructions and i think less any other questions are reserve may do so council will hear from good afternoon rob keenan for the united states i want to start with the due process claim as well in answer to one of the court's questions one of the reports of the june two thousand and twelve report is in the record it was not in the record and money to pay me and to make restitution for alleged misappropriation funds would be no problem and would be easily accomplished is that the report you're talking about that that is the same very one and it was before so that's that's what that's what was in front of the judge that she said she had plenty of money to pay for all of this well i wanted to note and reference that motion in limine it was filed a year before trial and then withdrawn as part of a stipulation to continue the hearing it was never really noticed there was an admission to that effect during the trial the judge wanted to know where is this motion and as later reported doctors forty which was dated june two thousand and twelve and actually is more in the nature of a typical expert report rather than the single page letter and it was attached to that letter was the unsigned report to intervention in this strategic trial choices of his gag nuns attorneys there were several objections that the government made i believe at the pretrial conference and repeated  during the course of the trial late notice we got a late notice of the of this mental defense in the reply brief the defense argues well you know they got notice here before but when they is true that we received the june two thousand and twelve report of dr sporty the problem that we highlighted during the trial proceedings at the pretrial conference was we didn't have any discovery to back it up you know there was an m r i m r i alleged done we have a right the government has a right to examine the data upon which these expert opinions of doctors are based and there was no discovery of that nature ever provided so it wasn't that we received no discovery we got the reports obtained to evaluate her for purposes of a defense at trial so all of the testing that he conducted in dr franklin conducted occurred three years after the offense conduct and so it wasn't clear that it related to that was a to his requests for medical documents from her own treating physicians so he couldn't essentially conduct a full medical history and evaluate that in light of the m r i results and testing that was done also his own report dr sportif report admits there's no gagne on had no history from what he was able to determine of dementia at all second he said quote there were no really deficient and well below what we typically see in cases where a defense lawyer is serious about presenting this offense and i wanted to get to that in one moment dr franklin also said he was unable to complete a history from his gag naan and there were also some other important factors that the district judge was looking at he was looking at a defense a defendant sitting in court entire really competent there had been no motions by the defense counsel to declare her incompetent to stand trial she was  so we had the situation with dr sporty in his opinion he never showed up in court but it is letter o and she's incompetent and then there's no effort by the defense to even obtain a competency examination as to whether or not she can stand for trial so   the evidence in this case was crushing so there's any error and there was none but any error that might be found didn't affect the outcome of these proceedings it was a clear straight rip she got the money in the bank records showed it immediately being spent by her over the course of sixty four days she just and converted it for her own use you could she is in desperate need of the money she knew darn well as to what she was doing and she obtained the money by fraud and in our case in our brief they've all approved the ten the definition of intent to defraud that is challenged on the subpoena every one of those cases so is that a clear error i would think  not in addition to the fact that the model instruction which is approved by a committee of judges and lawyers my understanding included the intent when we relied on the model instruction so  suggesting that well maybe she didn't have the money she didn't tend to she got the money initially without having the fraudulent intent that wasn't the defense at trial number one it wouldn't be a viable defense for obvious reasons but in the u s versus jones the support said that it was that even if she had obtained the money lawfully without fraudulent intent at the outset and then decided to embezzle it and convert it for her own use that would still constitute  wire fraud the on that i think the court has any other questions about the sentencing issues i'd be happy to address them what was the diff what was the defense the defense  argued that she was in the opening statement she's honest and honest person who wouldn't do this kind of thing the defense is going to call to catholic priests to testify a to the point that she couldn't form the requisite intent for the crime that was never argued in the opening statement and wasn't wasn't really developed as any part of the cross examining anybody  anybody testified that she was messed up in the head to use the street language to the point that she couldn't become a crook even if she wanted to the answer is no but even the better answer is they witness has testified to she had no such problem but that's the way i read the record going we asked to mr sweeney for example he was one of the banks representatives was asked whether or not he observed any irregularities with ms gaghan when he was working on the real estate transaction in this case  he said no joseph broderick one of the individuals she attempted to get the extra cash from after she'd blown through all the two hundred eighty five thousand dollars he testified to the contrary ms gagne on was very competent one of the best he'd seen ever worked with she was good at closing deals quote very competent unquote very efficient unquote more capable than most so in any event  i don't have any further arguments and what's the court has something about no further questions thank you counsel mr burns you have some reserve time you defense counsel didn't indicate he made a strategic trial choice he repeatedly said why he wasn't calling expert it was because of his getting young couldn't pay the expert there wasn't late notice that was notice and discovery provided here before trial government counsel repeatedly said that they didn't want to go to the bottom go to the trouble of filing an opposition until they were have been completely inconsistent with the defense that was used that she was a competent honest responsible person there was testimony about her being competent wasn't presented by the defense that was elicited by government counsel the defense was that w what was what was her defense the defense was that she didn't have the intent to scam these non's that basically she'd taken the money and she had squandered it irresponsibly but that she didn't spend so that doesn't that doesn't have anything to do with head problems does it well guess i mean i'd have to read defense counsel's mind but my belief my presumption is that he didn't present that defense because he didn't have the goods the goods being dr sportiest testimony so without being able to to put in that key testimony he didn't proceed with that but he was very clear that he wanted to call dr sporty this wasn't a strategic choice and as far as dr sporty and dr franklin's opinions you know government counsel makes it seem as if those reports say nothing of value if you look at the reports that some twenty two pages of it they say quite a good deal of value in these well there you go if you're back on ineffective assistance of counsel because what she did what was in the report was what i read earlier that she was clearly she had tons of money now that may have been s but that was what was in front of the judge don't worry about money i got plenty even enough to make restitution but she originally told doctor sporty that she'd be able to pay and then she couldn't right of the money but what was in front of the judge was her claim that she had plenty of money again my point is not that the judge should he said ok here's whatever money you need for doctors for you my point is that it had been driven so home to the judge that defense counsel was not calling this witness you seem pretty  important because she couldn't pay it at that point i believe based on this court's case on the supreme court's case law that the judge had a duty to intervene and if you had intervened in some of these problems you know was there sufficient backup discovery that all that could have been ironed out there's a duty of inquiry alan glasser say that once that inquiries made these problems could be ironed out and again this is this was compelling stuff this was not a bunch of junk contrary to how it's been perpetrated here that if you look at the reports you can see that for yourself thank you counsel your time has expired the case just argued will be submitted for decision and we will hear argument in weighing goes versus time warner