farrow was a criminal defense lawyer and essential a solo practitioner practiced with another lawyer but basically operated on his own it was perhaps just one notch up from shoestring sort of an operation he was practicing that way for really his entire career and he was a criminal defense lawyer in reality not just in name which distinguishes this case from our standpoint in critical respects from the blair case but i'm sure we draw a lot of good will cases that's exactly right around to try to a lot of criminal cases and the way he functioned in this case in his interactions with the individuals involved in particular is interactions with mr hairy men mr foreman and years ago his interactions with mr nick who was the kingpin of the marijuana conspiracy that's at the heart of the underlying case here in those respects he functioned also as a criminal defen lawyer which is distinct from the way the appellant and blair function and blair the individual was involved in real estate transactions and all kinds of non legal activity our client was a criminal defense lawyer and a criminal defense lawyer in reality and the fact that he was a criminal defense lawyer is of critical import from our standpoint in terms of how this case should be analyzed because as the court will note from all the priests that have been submitted in this case and particularly perhaps it represented underlying so i can see to your honor that there is some ambiguity about that what we do know is that years ago i think something like seventeen years before the events in this case that are at issue in twenty and there  and twelve he represented mr neka i represented him in a number of different criminal cases and continued a relationship continue to communicate with mr necker there was nothing there was nothing subverted about his relationship with mister it was over and it was on the record in fact he defended mr nick in a criminal case overtly and achieved an acquittal in that case and that was years earlier we also know that he represented mr foreman that two completely over represented mr foreman at least i did your honor represented mr foreman at least in two thousand and nine very possibly before that we know that mr farrah was one of the very first criminal defense lawyer to surface with respect to the government's investigation of what it ultimately what ultimately became known as the nikka conspiracy what it refers to as the nic a conspiracy one of the very first witnesses that the government sought to interview in its investigation of the neck a conspiracy this is years before the nick indictment has returned or at least a year before was mr foreman and standing between the government he did say that and of course as your honor knows it's our position that there is nothing remotely inappropriate about that advice and if in fact the advice could be deemed to be inappropriate it certainly does not constitute a fifteen twelve and appropriate i'm sorry  delineated is the most critical point that we have to earn with respect to those counts because your honor like i said and like the court just said your honor could not be more correct that a lawyer cannot counsel the witness to lie and in fact that makes the lawyer complicit in the one thousand one violation proper agreement that he was telling them to go in and so don't tell him anything more than they already know he was telling mr  mr ferals point of view and this is critically important from our standpoint your honor from mr farrel standpoint he doesn't know that mr foreman has signed a proffer agreement now of course mr foreman had signed a proffer agreement mr foreman at the respect to counsel eight and nine our position is that there was insufficient evidence as a matter a lot to convict him and i just to take your honour's question apart because i think there were a lot of critical parts in it first with respect to the notion that mr it and the courses of the government's theory that mr fowle is the consiglieri he was the word that it uses in its opening in its brief or you know another way these cases are referred to as the government likes to try them suggesting that the lawyer is what's called house counsel for the organization now here of course there's no there's no organisation i mean there's no l l l c or anything like that and from our standpoint there isn't actually evidence from which a jury could have concluded that he acted that way as the or as house counsel but that's not that's not really the issue before the court the issue before the court and i'm talking here just specifically for the moment with respect to counsel eight and nine the issue here is did mr farrel do what judge king just suggested did he tell the witness to lie and that's what's critical from our standpoint because you can't tell the witness to lie and certainly no it would be typical it would be i mean all of us who have been involved in witnesses in criminal cases white collar or otherwise we've all seen hundreds and hundreds of proffer agreements typically they're there usually phrase the same way but not always and this is critical i'd suggest to the court this is a critically important fact it is possible for a witness to be proffered a witness can agree to proffer evidence to the government without a proffer agreement at all and we have testimony about this  uncontested testimony in the record to this effect uncontested testimony in the record of this case from from evidence that we affirmatively present a defense case to the fact that to the effect that a witness and proffer without any agreement at all and  over the witness does not have to proffer with respect to a particularly phrased proffer agreement a witness and in fact the government's own witness mr murtha said that it was i'm sorry i didn't mean to interrupt the court but i was just going to say government's own witness mr murtha agreed that it was permissible and possible for a witness to proffer partially that was all mr farrell said he said tell the government what they already know now of course no one knew at the time with the government already knew they might know everything that's relevant but all he said is tell me what they know that is not cannot as a matter of law i submit to the court cannot be construed as an instruction or suggestion to lie  what you know you have to tell him what you know if they say tell us what you know you could judge the actors they agreed and i'm going to respond directly to judge the accuracy question to the if the government in a situation like that let's say a witness comes in without signing a proffer agreement at all perfectly permissible just sits down and the government says tell us everything you know the witness could perfectly permissibly respond as follows i'm not going to do that i'm not prepared to tell you everything i know  agreement yeah but mr farrelly your honor didn't know that mr farrel doesn't know that your honor this is this is all done without mr ferals knowledge there didn't have to be a proffer agreement there was a proffer agreement but the way mr foreman puts it to isn't any client conversation because he had previously represented mr foreman he thought mr foreman was coming back to talk to him because what mr foreman said was i'm dissatisfied with mr murtha among happy with mr murtha services among comfortable what mr murtha is telling me and so he talks to me he talks to mr farrel about this and feral unbeknown to him there is a proper gram and he says you know go in and tell the government what they're already know perfectly permissible that's not telling him to lie there's nothing illegal about it he could have done that pursuant to no proffer agreement he could have negotiated different language in a proffer agreement i can just tell your honor and i proffer this to judge titus at the to time at the time this case was tried you know you didn't have to tell him anything more than they already know why walk didn't mr vail just just don't go well because telling them go will be because telling them what they're already know can be of significant value to a client telling a witness to go in and tell the government what they're already know i mean you can get cooperation credit under section five k one point one of the guidelines for telling the government only what they already know because what you're telling them is corroborat e i'm so glad you're on to raise that because it is a critical issue in this case and i know the government relies very heavily on it with respect to you know the lead issues that for us in this case which are you know the appropriateness what we regard as the inappropriateness of the money laundering the willful blindness instruction and arson our suggestion to the court that there is insufficient evidence of money laundering as a matter of law so the governor relies heavily on what judge floyd just cited as the ten thousand dollar transaction where the foreman writes a check to feral for ten thousand dollars in exchange for cash ten thousand dollars in cash the government says this is evidence of  ferals guilty knowledge of the crime of money laundering at the time and it is no such thing i submit to your honor that that proposition the notion that that exchange of ten thousand dollars in cash for a ten thousand dollars check visa v mr foreman really illogical to suggest that that transaction provides anything close to sufficient fodder under either of those two standards the standards for administration of willful blindness instruction or the standard for the or or whether or not there's sufficient evidence of money laundering and for the and that's for the following reason because the money laundering the crime of money laundering for at its root fundamentally and this is under both of those two standards is predicated upon the notion that the that the the funds are tainted that the funds come from an illegal source well what in the world would be accomplished from that standpoint by engaging in this transaction which occurs in may of two thousand and ten between feral and foreman there's absolutely no room if the if the funds and of course with the evidence in the show in this case shows is that feral deadwood criminal defense lawyers do that he basically sort of suspends judgment i mean criminal defense lawyers are representing guilty individuals all the time that's our job i mean we represent guilty individuals and sometimes we're lucky enough to represent an innocent one but y thank you so essentially what's what ferral is doing during the course of of his interaction with all these individuals is he is essentially suspending judgment in terms of whether or not there is  guilty or whether there is a conspiracy or there isn't but if his objective if his objective in engaging in this transaction with foreman is to is to engage in money laundering to essentially conceal the source of funds he's received this would be the worst most illogical nonsensical way of going about it because there is absolutely no reason to believe that i mean foreman was the first one the government saw to interrogate with respect to this conspiracy if funds are tainted who it why would anyone believe that that ten thousand dollars isn't tainted be it via a check or b it via cash so what accomplishes nothing and it suggests no guilty knowledge and it doesn't meet either or any of the problems with respect to willful blindness or with respect to money laundering thank you so much certainly thank you ron or i would like to start with a proposition i mentioned earlier which is that it's the government's position that mr farrell was the config larry of a large multi million dollar marijuana organization and that is indeed true but it is equally true that judge tightest also found and agreed that that was exactly mr ferals role in this particular marijuana and money laundering conspiracy and more importantly it was mr ferals own words that give us his role as the consider larry of this organization because to answer many of the questions that are raised by the defendant in his brief is to look at that recording with mr foreman in july of two thousand and twelve because it gives virtually element of what is important in connection with the legal issues raised in the case and i'll start with judge bakker's  questions about this proffer green judge king's questions about this proffer or this agreement and this statement by mr farrell just go in and tell the government everything only what you think that they know again in isolation mr  makes a legal argument a nice technical nice little legal argument but you have to look at it in the context of when it with said in july of two thousand and twelve and when i read it first of all your honor mr farrel explains to them that it was in connection with a proffer agreement he uses the word proffer agreement he tells mr foreman when you go in there with the benefit of a proffer of more human and then he goes one to tell him that he's at risk meeting mr ferals at risk and that you don't how does he say it i know i don't know but i'm at risk because you know i know everything i know all the people that were in trouble i know what's going on with the case he's the one that said he has t end of the day if i'm given money and he's going to pay that attorney's for you have back when you address the money laundering issue because i think that might be the weakest point for the government yes and i understand you're on ours up here to talk about our talk argument in this particular case it is clear that there is circumstantial evidence all over from two thousand and nine continuing up into that july of two thousand and twelve meeting between  foreman of a pattern of activity that shows circumstantial evidence that mr farrel had actual knowledge that not only were the proceeds that he of drug trafficking mean used to pay for these attorneys i mean they turn to represent people who worked for mr farrel for mr nneka but also to provide commentary funds for another inmate who was imprisoned so that's what mr farrel did he had his hands in five different people who worked for mr meek at least five that was the evidence up to ten thousand dollars what was the government's best evidence that that ten thousand dollars were the proceeds of unlawful activity well thousand dollars in cash put into his legitimate law firm accounts for which he attributes that money to certain clients but he does not put in the source of that money because it is mr nikos and then marijuana organization that he is attempting to do that on the right it comes from the cash that came out of wherever i mean that's part of the evidence in this case your honor why would a attorney get a ten thousand dollar check and mr foreman saw a word so weak so he could i mean mr ferals own words so he could show on the books that he's been paid when in fact he hasn't been paid right because the ten thousand dollars are coming he gave the ten thousand dollars cash back to mr foreman to show he's been paid by buy mr foreman mr foreman didn't pay him now because he's giving back the ten thousand dollars and that's just one aspect of this because remember that all happens in july we have what happened with the other clients earlier on as mister  as mr farrell proceeds through this time frame when he is putting his hands in all of these different particular clients that he doesn't represent but he knows are being charged with certainly contends that mr need the evidence would show that mr nikko was the person who mr farrell had the closest relationship with i don't think there can be any dispute about that but there is some quote unquote ambiguity about who  represented he says he was a working in the interest of the family so whether or not that's mr nneka who was the head of the organization or the more esoteric not the l l c but the the marijuana business itself who knows asian well the organization itself exactly your honor because all of it and we know it's not a regular organization but certainly all of the people that testified in this trial link mr farrel over that time to the fact that they have one thing in common and that is they all work for mr nneka and i think it's very telling that mr farrell stayed in contact with mr nneka after the indictment of mr nneka but while he was a fugitive in canada and he's able to get him on the line and get information to make sure that mr that mister knows what's going on just like mr farrell wants to make sure he knows what's going on because you so i ask no he did not your honor right there were courting in july are so they're so powerful and so compelling and frankly as you can see from the way the conspiracy is charge from two thousand and nine to july of two thousand and twelve it was the government that's wrong or there was no they weren't expert no there was not question they could have been probably proficient about what lawyers do or what they shouldn't do well some of them were asked by the defense and i think you know that's a double edged sword here a lot of the  his his interests were aligned with mr nita and the organization and these other voted for it he was talking to he didn't really represent he was just one of the lawyers can have mean everything they do ramble of course the calls are represented a criminal defendant of course not i mean that goes to the heart of everything that we you know we all do in the criminal justice system this is taking things looking at the big picture and each of these little facts for an experience criminal defense attorney and weighing in them in the context of his words in july of two thousand and twelve and the way that he conducted these financial transactions to the government is exactly what happened below the requisites for the administration of a willful blindness instruction are there technical and they are meant to be construed strictly there's all kinds of cases authority cited in our brief and cited in particular in the national association of criminal defense lawyers prefer about how discouraged the use of this instruction is there are places where it's essentially prohibited and i believe the third circuit and there  reason for that because you know it i mean the case law on this is just not me saying this but there are cases in getting that administration of this instruction has the functional effect the sensually of taking what is an outright unambiguous subjective knowledge and dropping it down to what could be construed sometimes as something close to negligence and so to follow up on what judge that are said i mean there are specific requirements for when an instruction like this can be administered there has to be a high probability of a relevant fact existing and that the defendant and this is critical took quote unquote affirmative steps to avoid confirming that belief that's from global tech and it's been affirmed in a whole series of other cases there's no dispute about the fact that that that's the rubric that's what applies here there can't be any serious analysis that it's the question of the exercise of discretion by the trial judge well as a fundamental and there's a thing for your allen charge you claim they gave an allen manner is reviewed for abuse of discretion but if inside of that analysis there is a misunderstanding of the vote laws which we think is the case here then that could be reviewed at least with respect to that submits you could be reviewed  discretion i think he made an error when he instructed this jury with respect to willful blindness in a situation in which the requisites the ones i just referred to including the requirement of a showing of affirmative steps to avoid knowledge is a complete vacuum a complete utter absence of proof in this record of that is no evidence of it none there camp from my standpoint there just can't be an argument an argument as anything close to a successful argument can not be presented to the effect that a willful blindness was instruction was appropriate here and once that judge that put that question to the government the government responded the way they did below the way they have throughout this case they responded by saying well there is actual knowledge but that's not the answer because the presence of actual knowledge has nothing to do with whether or not you're in the alternative do they could argue in the alternative although there is at least one case out there suggesting that that's impermissible but our point here is that there is a complete absence of a basis for a willful blindness instruction and it can't be harmless you know there's a matter of law the requisites for demonstrating actual subjective knowledge and the other requirements with respect but everything in these cases would be harmless  here we're talking about something that's at the very heart of this case we're where we are it could be but it but it's much more difficult for it to be harmless and here we're talking about is something that's at the very heart of this case as judge as judge that pointed out it's  the government's weakest argument this notion that a willful blindness instruction could have applied so if if they did if they weren't entitled to that instruction which i think it's clear on the record that's what mr farrel got convicted on got convicted because of the willful blindness instruction because there's just no evidence there's just no evidence in this case that he had actual subjective knowledge he did what criminal defense lawyers do which in this situation is you don't form a judgment you don't look you don't do your own investigation evidence yet he had no there's no evidence that he had subjective actual knowledge that the findings that were utilized the funds that he touched were tainted there's evidence in this case uncontested evidence in this case coming from the government's own witness mr foreman that to the effect that even if the funds issue and of course as your as the court pointed out we don't know where the money came from that mr farrow dispensed to mr brown  or to mr tully we don't know but even if that money even if that money came let's say from mr nick or you know from the quote unquote conspiracy there's evidence in this case that there were that there were a number of illicit of legal of actual knowledge or of the other requisites for money laundering conviction that read like a no thank you so much appreciate it very much but i give it over to come down great council and all the last day