twenty to fifty five on the grounds of ineffective assistance of counsel and denial of brady material this case involved the defense saying in constant you know repetition that there is no obligation to explain anything and that mr joseph murphy a collector of rare an antique firearms got what he paid for more to the level of a federal prosecution i couldn't quite figure out why it was a federal prosecution but the more i thought about it in terms of your argument isn't it like kind of a fraud on the market case where someone buys some stock they got exactly what they paid for the board fifty shares of general motors stock that's what they thought they were getting that's exactly what they got for because of fraud in the marketplace the person was a lying about a certain set of false stewards in buying the stock in subprime fifty shares motion when we came in post trial rule twenty nine said this is not merely sellers representations this is agents representations agents ofer do sherry duties and so it would have been or the house is in contract with another seller that type of representation well but what separated it was more than them mr lefcourt i mean he didn't is the misrepresentations include specific misrepresentations about value paid to make reparatory misrepresentation you received what could be considered something that was sold that was overvalued made twenty five thousand dollars to a gun dealer to write a letter stating that the value of the gun was more than yes that's a mr sweeney he's not a defendant in this case but that's nice armor of the marketplace kind of analogy yes if here's the thing the defense attorney makes the argument we have no obligation to prove anything or to explain you did not know that there with three incredibly value valuable pieces of evidence that would have changed the day because mr murphy had agreed unbeknownst to the defense attorney according to the l speaking for myself i'm i'm not really sure what the agency why the agency issue looms so large in your briefing because the bottom line is there's nothing in that statute that requires an agency relationship even if you let's assume for the sake of discussion you could you have ironclad evidence that ellis denied he was an agent by the way you know as a did deny he was an agent and it was in the no but then ellis pled guilty and during the course of history the assistant u s attorney made a representation that ellis was his agent it was not contradicted at the play now you say it wasn't contradicted is it pains to say that ellis is lawyers pacific we said we don't accept that he was agent for all these transactions judge roofer may not have understood there you quoted what she said she didn't understand that she said she wouldn't take in the player if that's what he was saying but but they've quoted the transcript and it looks i mean unless you're saying that they fabricated the quote the way you're saying no no they're not accepting that he's the agent for all these transact judge jordan this is what el agreement between messrs murphy and ellis existed in fact mr murphy acknowledge in the settlement agreement that the parties duties to each other were unclear and that there was no fraud by the way also moreover miss mr ellis and his lawyers told the government agents on numerous occasions that he was not an agent for murphy for some reason the loan government documents that captured information provided takfiri and it's in the case lies in supreme court case it's one thing to say these are great guns you should really want these guns and it's another thing to say these guns are worth three quarters of a million bucks when you know they're worth a quarter million bucks because you acquired a month ago for a quarter of a million bucks how can you characterize that it's puffery mr law or well because you know that's the kind of thing that brokers in real estate transactions in other transactions do all the time  to that the government have a case without the agency issue i don't believe they do you're on it but certainly it's a very different case look what we have now that was unknown at the time number one this a settlement agreement where mr murphy says i agree there's no fraud and our relationship what duties were unclear number two governing cooperator has told the government numerous times and never disclosed to the defense that he was not miss the murphys age and he maintained it through the day of his sentence if i tell you lurch thing is we have mr murky trying to sell those very guns i wanted your lanes at the time he knew there was a fraud to miss the william gates they you know the head of the microsoft corporation were always things where you cross the line between puffery and misrepresentation let's say i'm selling used cars and i say this is the best car on the lot i think you should buy it i think that's puffery for me i'm sorry  used cars people understand what salesmen the doing to them what they don't understand is when they have a relationship with the do sherry relationship that their lawyer or that their agent or that their broker that's a whole different thing well the remarkable thing in your proposition is that our society is so right with misrepresentations and weiss that people should just expect to be lied to about the value of things that are presented to them and they should be expected to lie to about the character of the  sales transaction self that other buyers are involved and they should expect to have fabricated documents presented to them indicating that there are other buyers and that that's just the way life is and short of a fiduciary relationship when mail fr statutes as fraud it doesn't include the in lie to flat out your own i think that the difference might be if there is a misrepresentation as to the the the nature of quality what it is because i bought it at what is more regular market i understand what you're saying judge jordan the difference is is that when you're dealing with antiques you can say the walker ten zero nine and ten ten is really this price because it is a unique antique but there's not a market for antiques there is a market out there there's no such thing as their market value or an excuse they're unique and that was belied by the market that actually existed for these guns and that your client participated in because your client knew the value you acquired guns at the appropriate value and then participated in this representing well here's the thing with mr murphy who's writing a book at the time with the foremost leading expert on cult weapons he's writing the book at the time he buys this he is a rare collector so for him to have these two guns that were presented by samuel cult to general sam walker to him that where else is he going to get it i mean it's not like you can go somewhere else the buy them there was no misrepresentation as to what they were they were real antiques in the real deal what you might say unlike the florida case where they said that the land was good land then it was swamp that's a misrepresentation that goes to the actual what it is this is what you really toll call puffery but what was unknown to me none of this was played out  trial we're playing it out here because we know now that murphy said there was no wait and see we know now that ellis said he was in his agent we know now which the defense lawyer did know and had nothing to work with your defense attorney had a deposition and the defense lawyer trial knew based on the civil depositions that there was no agency your honor or asserted there was no i don't i have to point out your client swore under oath in a civil deposition that which is in the record here which says there's no reason for me to have any problems with you want to sue you will you participate in a deposition and what my client says is that he thinks that ellison wanted to be murphy's representative leaving as agent and being replaced by alice i mean the very question was would be leaving as agent and that was ellis replacing him i'm not sure how i don't think that they were one right after another but that was discussed on the you know during the course of the deposition project short here's a guy who is not the agency he said i think and it's up to the jury as to whether there was a fraud whether fiduciary an agent was involved in this case none of that was presented to the jury and it wasn't for two reasons one is the ineffective assistance of counsel if you will you should have known this that and the other thing but he said he never saw the settlement agreement there was a hearing the prosecutor said it was the most important document in the case he went further and said when he got the settlement agreement from ellis lawyers he thought whether he should prosecute and we have used that mr ellis pled guilty to participating in misrepresentations to mr murphy but he did not always that he was his agent but the defense lawyer not you know that it doesn't matter i mean before you use the term representative in a way to to distance that and separate that from the meaning of agent doesn't matter if you participated in it as an aider and abettor conspirator agent doesn't really matter if the government can establish zam or is role in misrepresenting the value of the gun two things one is the mere statement by a seller that is not true of the like that judge went these outlying with the car dealer which i think is totally appropriate it would criminalize business is across the country business is every day have civil settlements with attorney generals for deceptive abaco have mores wouldn't bother them all and we don't have we have a substantial sum of money being paid to generate a document that would mislead the buyer in terms of what the gun was out your way seems mean this and there's a line where you draw and he we don't have to find where you draw the line here but there is a point at which those things that the son of would do to is some line and somewhere it's not spelled out in the cases but what's clear here is we have a trial that wasn't there because the jury thought from every witness from that from the victim  from the experts from the government's opening everybody that there was an agency the defense not knowing that there was no agency said we don't have to establish anything there was no trial most look could have been done with the gates letter  it wasn't turned over until somehow after trial it came from light i think it so yes it came to light when the probation department reported it and i sort i didn't know what the settlement agreement what's the prejudice in not having had that well i think that the gates letters were substantial impeachment of mr murphy along with other evidence the gates letters show that he was willing to sell the guns that he claimed that he two he had also been at a gun show and he had represented two people on tape and investigator on tape that the guns will work more than he paid for so mr murphy's credibility would be affected in one level but much more than that on the agency question he signed a document that said there was no fraud he signed a document that said that whatever responsibility ellis had to me is jury should have known about but all he says is ominous i'd like to sell you my collection for one and he for that's right truth which is the foremost collection in the world or whatever you know he didn't say you know how we got it that he overpaid another look it goes to the same question as what with the jury have thought about this case if they knew that there was no agency and all the witnesses were asked things like is it proper if you're an telling him x value he would not have paid that much for the gun and then you have the government experts saying that there was a fraction of what he paid for on the one hand than the other hand he had him trying to sell the gun for what he paid for it so i guess you're arguing that the gates the whole question to me is whether the materiality aspect of the mail fraud statutes were met here by the by merely the misrepresentations the material what what makes this material it to me what makes this a crime stands up says i have no obligation to disprove anything i have no obligation explaining he had nothing to work with nothing and what was really withheld namely ellis saying i was an agent the gates letter saying murphy did essentially the same thing the settlement agreement where murphy admits and signs a document saying there was no fraud well what is it jury do with all that stuff this mystery i've never seen such an unfair trial in light of what there was never made it into the court room and me and that's what we're dealing with here we're dealing with a combination of government intentional delegator turnover gates and ellis a statement he was you know if i could explain my own view is that the defense attorney never had that but they both got on the witness stand and it was a contest of who you believe to me to find to me you know i did the hearing it was post trial to me the prosecutor says it's the most important document in the case i almost didn't prosecute before you know because of it therefore i know i said that there's no cover letter that says it's brady or or even refers to it and his two other items that he didn't turn over those they have no excuse about the ellis admission that there was no agency and the gates letters you know what i don't know who to believe but if you are just to assume that we agree that there's a basis in the record whether we have found the same way or not there's a basis in the record for the determination so the truth when to the prejudiced w to skip wrong one in the stricklin analysis and so no prejudice what's your position is it is i guess your position but let's put it on the record here in the argument is it ineffective to not know that you copies in that discovery packet i mean how in the world can a defense attorney go to trial with a document like that not know you have not reviewed the discovery so i'm accept as the court apparently does judge reuss ruling that the defense attorney was unconvincing that he never received the document but then he was totally ineffective but your view is that that single document important document in the case that it caused him to hesitate on whether to prosecute it all but that was not the only thing that was with help so yes that alone would be enough but if you couple that with the other brady violations which are question about your two appeals to me hypothetically speaking if you were not to prevail on your direct appeal and we were to address the deficient counsel argument that you are raising your your he'd be as what are you asking for your points that's been ordered of one point one million dollars based on a cost analysis plus ten percent which i would like to address if i have another moment  clearly a new trial would be what is appropriate a trial in which a lawyer had all the material you remy should have same whether it is sufficiently evidence or ineffective assistance under medius your remedy would be the same worst comes to worst you know notwithstanding the fact that i made numerous bail applications he has or sentence and what what unfortunate this restitution order in this case we asked the court to determine the value of the guns now i mean it's a curious thing why should your client get the benefit of the market increase if one assumes for the sake of discussion as i think we have to that your client is a to fraud or and guilty of a felony that's at least the basis for the scots saying what's fair restitution why should the defrauded be the one who gets the benefit of a market increase well actually your honor i think is relevant to the question of whether misc is going to be made whole or to be made a multi millionaire because of the connection but i mean that's it's just relevant not because of a conviction the question isn't the conviction the question is what happens in the marketplace and who gets the benefit of the market increase should the person who was the victim and bought the guns should the buyer the owner get the benefit of the most interest where should the person who committed the fraud be the one who gets market increase your argument is measure the value of the guns now and everything that's happened that might have increased the value to guns in the interim that should be to the benefit of the person who committed the crime no that wasn't argument well number one it's relevant as to what the value of those guns are number two we argue that you shouldn't give a cost plus ten percent in this industry in the industry  it how much is this person been out up let's take a look at it you'd still issue a restitution order we asked the court to to to issue a cost plus fifty percent y because even though the mark with rare antiques are hundred thousand percent we said fifty percent because mr murphy in this case got the guns that he marked up fifty percent he bought a gun for one hundred thousand it's all the six hundred jordan the question of what the value of these guns are we had a letter from the government's expert at the trial who said they were worth more than what he paid for but all i'm saying is that that is it would be are the short of thing that he said it would be awkward to say mr murphy where the value may be x now or to maybe it's more than what he paid when he himself has made sales with large markups when the markups in the industry are not cost plus ten percent but i of what the value is then you should consider what kind of restitution is appropriate because obviously because they have value now at this number they may not have been valued at that number at the time so come to a concluded come to some determination of cost plus something we said fifty percent we thought that was very reasonable in light of the fact there was evidence that murphy had so at cost plus fifty percent so i mean that's what the argument was about gone but when that proffer involves where those statements involve deliberate misrepresentations law absolutely lives creating facts that are not true not the facts that still exist that aren't true it goldman your honor at the twenty two fifty five hearing is that he thought it was a realm he thought it was in a fury how can a document which goes to direct impeachment of the government's main witness the good the victim in a case where he says had i known the honor the fact that mr murphy is offering those guns for sale at a certain price and to bill gates doesn't necessarily mean that he truly believes that that he pete pete paid mr murphy paid true value other him but the question is what effect on a pea just mickey points out goes to the value of the guns at issue in the prosecution is something that the jury might not have taken seriously that's that's that's a curious thing that because in order for us to accept that assertion we'd have to say that there's no way that you could say i'm selling this  for what i got it for doesn't include a very clear implicit statement of value i mean that's your position right that saying i'm selling this for cost has nothing to do with the statement about the value of the guns about the value of the goods i mean you can argue and you would argue no that the jury that that that that isn't how the jury should take it but we're not here to guess what it sure is should or shouldn't do necessarily i but certainly the certainly the latter why can the letter be used to sue or to show that i mr murphy was perfectly willing to pay what he paid for those guns and knew their value maybe they were less worth less than he paid but he was one t show their missile i don't have two hundred million or one hundred million dollars million dollars or something like that those my mine but if it's in him to spend that kind of money in terms of the ford in the elements of card you have to show that he spent more  generated appraisal report absent this testimony about whether or not you already own the gun absent all those misconceptions of fact he would have bought that gun for that amount of money any how could this with a gun h you would have would you disagree with the assertion of the trial counsel for the government that the settlement agreement was a very significant document mean it's been pointed out by your opponent here mr think that this is not a material document well fatal isn't really the standard right stand so let's let's stick with the standard materiality which is a reasonable probability that it could affect the outcome here's a statement signed by the government's main witness the victim in the case of the centerpiece of the prosecution saying there's not a fraud here in essence there's not enough there's not evidence here to say there's fraud now a signed statement by the victim  right well if it's a material document then doesn't that drive us to the understanding that the failure to know you have it in the context of this case now should i really can only see the i wouldn't want to i'd be concerned about a rule that said in a case where you've got fifteen c d s full of millions of documents if you miss one of marginal materiality you're do you are by law in effect but let's take this case there's one hundred eighty documents according to the defense counsel total turned over as discovery by the government the settlement agreement constitutes twenty nine pages it is by the government's own prosecutor submission a dramatically important document by mr studies statement a dramatically important document is there any escaping even though judge rufa didn't talk about it is there escaping a conclusion that not knowing you've got it is ineffective because if there is that i'm very interested to hear if you've got a way to look at that and say that's not an effect of the system assume for the sake of discussion that that's where he actually said i'll go the record i think could be argued somewhat differently i think the record could be argued to say that he said clearly in the morning before the lunch break and then in the afternoon he added at kota which was i should say i'm not certain i would use it because of the risk of alice taking and that's a very different thing from saying i would definitely not have used  even if he'd said i definitely would not have used it because his judgment about whether he would not have used or not control whether this court could say there's prejudice and  using it because that's what we're coming down you're saying that his statement after the fact that i would have used it is sufficient all by itself to say you know prejudice that right you're saying that this trial strategy which would have been nice to have used that i can for cross examination but that doesn't prevent us from reviewing it and saying that he should case beyond a reasonable and it's a really it's a different kind of case it's not somebody a case where someone stole a trainload or gold or something with a value that you can sachse to it it really goes whether or so he thought the guns were with x or he was going to try to grab somebody else off in the we have to wonder whether or not the jury would have been the reason a lot of probability that twelve people would have had the same is telling people what the guns were worth to him but what's wrong with that analysis if you got a document we're murphy saying this is what my collection is worth to me as a matter if you've got somebody puffing up he could have gotten him for less crazy without the twenty five thousand dollars to get that phrase or he could have gotten them for less loadout without him believing that somber or alice was going to get this gun at a certain price where the reality was that the gun was already in cases which would support my view of the prosecutor's duty having said all that what is the interest of the government in france getting someone without turning over the gates water without turning over the settlement agreement if there's reasonable probability that those documents could have made a difference to the outcome of the case is really the government's interest to get a conviction against somebody if i had the jury known all which maybe they should have known they would come back with a different verdict trial who's to say there shouldn't be retried the only question we're dealing with this was the trial that happened infected in some way that requires a the matter to  retried and that's i think important for everybody understand that's the focus of our questions we're not trying to i certainly not trying to second guess the decision to indict prosecute mr zomba from all appearances it looks like he's a fellow who was wian and deliberately so and trying to make a buck off of it but that doesn't necessarily mean that a jury would have agreed that that was a criminal offense under the elements required had they had all the material put in front of them and that's the issue that that your opponent has been advancing that we've been trying to advance with you