as that color was black in this case the jury was allowed to consider independently the defenses of mr levine and mr leonard just as long as one of them was guilty it is the case about mutually exclusive defen levine's defense that he didn't believe a fraud had occurred because he had disclosed everything regarding his role to mr glenn or his counsel and mr einhorn another one of his counsel it was mr leonard defense that he there was also a giant fraud but that he at the turning was misled in fact the fraud was so pervasive that even fools and experienced attorney like himself the government is phrasing it said well there was a sort of third theory that the jurors could it could have acquitted everyone on fact there was no fraud that's very wasn't advanced by anyone in this case so this case is a lot more like this course prior decision in a field where there was clear evidence of a crime there were drugs found in a home there was no dispute  occurred that it was illegal and that a crime had occurred it was just a question of which defendant was guilty same thing in this case more complicated but really it will counter the same thing there was a fraud that had occurred was leonard was guilty a reasonable doubt you can't convict anybody that would be true in a case where you didn't have defendant acting second prosecutors in the courtroom but in this case you had if you took it through my brief i tried to take out many of the answers what leonard's council did it with all due respect to government counsel i submit that he was the most effective prosecutor the court room maybe because he could push the limit more than the government counsel would have been able or willing to do but in this case he brought a many times you  after these long exchanges about basically the allegations during the regulatory investigation were the exact same it was cookie cutter from what was really planned the indictment it was you were asked about did you have an interest in this were there material misstatements you know ma investment offering and they just and in fact you were told not to answer advice of counsel and you didn't well that the curious directions of these those mentioned by the government's brief were that the jury was instructed that you consider this only as to the issue of intent well when someone right provision the rules it was already made at that time it looks like mr leonard levine would be traveling along the same path almost as soon as trial started it became clear that that was not the case and it was clear to everyone at that point mr levine i think is at the time this happened there was already a separate trial set in this case for defendant ronnie scott shane that was scheduled to take place later he ultimately ended up pleading guilty but there was already tried i think that's why judge mass which took several times to consider it seriously that he would in fact perhaps so it was raised and my final point on this issue is that the government during the trial never said he wait a minute it's too late to raise this so because they didn't raise that the district court below that was too late i think they waived their chance to read well i don't think it's ever clearly i agree ok you don't know what's going to happen until it happens and that's part of the requirement as i understand it is that you can sit around and and move at the outset and then see the trial going away you think is ok and they're not renew it and  that that same man is mr leonard's trial counsel he's the same man who during the course of this trial saying and he told you to invoke and you can say anything they told you about him you can say that it will you not to testify not to say anything and then that same guy the end of the trial turns really infinitely regressive right down to the jury's notification power and finally i think that mr levine's right to effectively cross examine the confrontation clause was infringed here because of all the statements brought out by it when it's counter  beyond the pale i think it's a violation of the confrontation clause and i think it's a violation of the attorney client privilege second says that this is the statements regarding the man on the deal regarding the investment programs i think those are and i'm not saying that the i also about the pending investor torrie regulatory investigations about impending litigation so they're going to the attorney saying look what do we need to say anything matters and so i think under that analysis the statements are testimonial was there at least a supreme court the in your in your argument in support of severance you're saying either the lawyer or your client had to be guilty right right and it's the same time you're saying and throughout the course of the trial i take it your your client was saying the lawyers guilty he's a liar and he's feel yes because when you say he's saying yes that's true because i  now members of the jury you know is a crook i guess that's about the only no he's a crook because of his defense now which is they didn't tell me anything i got you i got he's saying that your client is the evil one because he didn't make a full disclosure to the lawyer right now ok it is an awkward position but it's only offered because of the stance taken by the attorney at the trial in terms of the i don't know if the court's going to questions regarding other issues otherwise it save my time for a bottle remand is is in order here i think normally it's rare that a district court says anything about the about how it feels about the guidelines and in this case i mean i think it was pretty clear just must with said that he felt constrained by the guidelines and i think he he and confrontation issues your honor i think part of the problem here is mr lekman was not the trial counsel i was and he doesn't have a very good understanding of what actually happened at trial there was a seventy five plus  dollars from those proceeds the government investigated the case for about three years there were twenty korean diet and guilty pleas twenty defendants were then indicted thirteen of those defendants qui before trial six went to trial one died of the six went to trial mr levine was convicted mr morris leigh sales ramon it was convicted the jury hung on mr leonard the lawyer and three salespeople were acquitted the jury was able to earlier mr levine did get the highest sentence he was convicted and for that long trial mr morris as mr lekman said i think got close to fourteen years and all the other defendants were in the range of seventy eight months down they were all a yes or he was and you're under the court there's really three factors why the court made the right decision on the severance first of all mr levine asked let me repeat i asked to be tried with he filed no written severance motion for mr leonard pretrial as the court indicated there were a link the five months of pretrial hearings to leading up to the trial in september two thousand and two we had many many hearings on severance mr levine specifically asked in several hearings to be tried with mr wagner he specifically said we see no reason why these attorney client issues are going to be a problem here the court made specific findings because there were big with the multi defendants involving this case there were lots of issues of finger pointing and he made very specific findings that list two of being and we said these out on our brief mr lena mr leonard agree there were no issue between them secondly their defendant their defenses were not mutually exclusive in fact they were mutually supportive as i will explain mr r d l that was mr leonard's attorney he made an opening statement really the first opening statement of use for seems that mr greenberg mr levine's attorney basically followed through throughout the trial first theme and by the way in mr leonard's openings opening statement for mr leonard he only mentioned mr lean's was a manipulative liar who abused and betrayed his own people and this green bird mr levine's for anything you have done that and use that same thing and finally that the cooperate is all has something the game better stances and they were not mr greenberg adopt those same core themes those four themes were followed throughout the examination across the emanation of witnesses they were adopted in closing for example the government put on evidence about a separate levine use that same argument but they flipped it around they said no no no this was a good business gone bad as mr lekman argued in this brief mr leonard at that time gave an opinion letter to mr it's quits and mr will be there only opinion letter he rendered for the next six years which he said i'm not a securities lawyer but these look and to me he's general partnerships that is the one piece of evidence that mr levine focused on later that i laid back four years earlier believe that this was these were not securities there were no there was no other evidence the deuce the trial about any communications whatsoever between mr levine and mr leonard and matter of fact in the closing argument mr mentioned this opinion that or that mr leonard had given earlier as the basis for this good faith argument specifically in the cross examination mr leonard mr greenberg asked him did you ever hundred four with mr einhorn where they disclosed to him the nature of their fraudulent scheme and how they were going to pay him successfully over the next few months that there was this strong man is what they call the man on the deal who is a figurehead who will be represented to the public as the person in charge of this corporation when in fact they were paying him on his side and they were controlling operation that was the only evidence was presented to the jury about this whole issue will mean and i'm or no other evidence came out moreover all the evidence that came out about einhorn's testimony einhorn statements to the coconspirators came out through the government's witnesses first and then it came on a cross examination and the court made to see multiple findings but two i can cite for the court that this evidence would have come out exactly the same in a separate trial and it came out through the government's witnesses first i would say cite volume ten thirty thirty six to thirty and thirty seven in volume forty nine one forty six forty six to forty let me tell you where that is that's in volume fifty five one sticks two hundred thirty three through one six seven thirty seven i'm sorry your honor that's actually volume fifty one one one fifty four seventeen and one fifty four forty nine moreover in knowledge having the requirement that each defendant had knowledge of the scheme that was instruction thirty six that's a volume fifty five one six seven thirty three to one six seven thirty seven he did he wasn't interested in the advice of counsel he did only got a little bit of information from mr swiss i did very narrow work for him and everything he told me was that the business he was running was up and on the up and up that supported mr levine's defense that all these only twice in his whole closing argument it was contemptuous it was in the comments in the context of his describing letters testimony at trial were leonard had said that he had not met with levine during the course of this  attorney mr greenberg specifically knowledge that to the court on eleven twenty five zero to advise him thirty seven one one five one zero two one one five one one that are so supplementary excerpt sixty one eighty two and he was different but complimentary reasons i read ellen each and greenberg each and then to find these lawyers and it's ticked off that they named him oath in their closing arguments greenberg did it because he wanted to show that the information ira passed him was coming from lawyers maynard wanted to do it because he wanted to show that he was just one of many lawyers it's very important to note your honor with respect to the mutually exclusive defense arguments that mr lekman raises the no lawyer not mr greenberg not mr iredale and none of the other three lawyers that were in the case argued anything about if you believe  have to you have to convict this defendant or if you convict at the senate you have to acquit mine that was not argued by anybody how come there were sixteen motions to sever that you know under that's correct there were i don't know about the sixteen i went through the citations  this came up the court went through they think hearings outside the presence the jury where he checked off all the evidence had to come in and he said there's no basis for this and i would ask the court to look at  forty nine one four six four six two four seven where the court on twelve eighteen zero two at the conclusion of the evidence taking when the defendants moved to or renew their severance motions with at the time of the rule twenty nine where the court specifically said i'm convinced at this point that this risk that notwithstanding the arguments of alleged differences and trials that strategy and point of view that this really hasn't turned out to be a case where the presentation of any particular defendant has in fact given the evidence presented prejudice any defendant when one defendant may have pointed out the evidence that there's already there that the government has or could put in or did put in so the evidence they didn't offer anything that could otherwise have come it not come in by the government i really think excuse me i there i think there really is not any inconsistency is or prejudice to any defendant there were legitimate fears but they were not borne out in the record after all was said and done this is the case why the abuse discretion test is so important because these are fact down decisions all of you have been district court judges you know how important is to sit there see the evidence that the jury receives make your own assessments of how it's being viewed how people are coming across and he made thank you for looking up from your honor court i'll be doing with the confrontation and crime fraud issues and i think that the analysis of both of those issues begins and ends with the fact that the attorney irving einhorn get the protect a conspiracy there was reasonable cause for the judge to find that his services were being utilized in an ongoing fraud now the court made very specific rulings as to  einhorn's role of the coconspirator those rulings can be found at volumes six twenty two thirty six through twenty two forty two and volume seventeen five thousand nine nature of their deals that they were selling securities and that he was an insider in this organization and one point he points out that the attorney leonard was used for the more mundane tasks but when they really needed an insider who was familiar with sentenced and he's fine right there was extensive discussion in the record about the government's interest in prosecuting him but ultimately this issue was made not to name him in the indictment you still view him as a coconspirator but that is correct and he said that i'm one hundred vizsla not to have anything in their own name to not put any cash in the bank and to move their assets off shore he had told them that this was the touch someone was going to be  einhorn was paid thirty thousand dollars in cash in his testimony about that that he preferred to get his money in cash to stay under the radar of federal investigation and so he was he  there's a lot of evidence in there about what you know just got thirty thousand times twelve i'm sorry you know he got thirty thousand times twelve all we know is that that was what is his rate was and we were told it payments were made and in  yeah i don't know if there was i don't think i've read it i may have come across our e mail system thank you speaking of that i'm court appointed so in terms of mr libby's financial resources i'm not costing him anything i don't think he has the funds to pay for anyone i think there were some of the testimony trial was that a great deal funds were used for twenty thousand something like that so i think that's part of at least i think the quite a concern i do that that someone who had a storied career would really risk all that for what in relative terms is not a great deal of money  office and i said what happened at this meeting this meeting that we're talking about and he said i've went there with good faith i went there to get legal advice i went in and then the fraught one trial comes and now he's a pony if he changes the story completely so i just think it's a pretty fin free to say this appear before this court he still in private practice he hasn't been indicted here or anywhere far as i know so if he's that culpable i would think i'm probably you can indict tom de lay but you can't fight irvine or seems on reason to me but the trial judge found that he was a prior depositions this is what mr leonard did in these offerings he created the initial managing partner corporations he prepared the consulting agreements for the organization assisted in changing the corporate names of the different isos and attended the initial organizational meetings of the general partnerships with the initial managing partners and he responded to investor questions so to say ok i just want a letter and that's it it's just not true it's just not true and i think the antagonism is very clear from the record it's very specific government