i did not try the case i became counsel at sentencing the trial attorney who did present the case for the united states government is here to make the appellate argument is well we're not after a fair trial we're effort right fair trial that is not violent to the constitution there are always imperfections there are always mistakes we understand that with out constitutional violation the mistakes don't matter not at this level but there are two portions of this trial that matter and are significant constitutional violations the first dealing with brady simply put there is a breed a violation when applications which corroborate the defendant's trial testimony are withheld from the defense counsel and are only learned about as government witnesses testify in the case that being ms mart vardaman the reason why these documents are so critical is not just the missing section page two in page three of they operate cation but more importantly if you had the bank application you as a defense counsel would have been able to go and interview that person and ask them is what mr vick is testing to testify to i was told all i  part of a it goes into a computer the rest of it is done there by the star witness mr reg if that's what they're told exactly what mr testifies to then the whole trial about his knowledge or his intent to deep fraud a federal credit union is in play and with respect to the outcome there is a probability probability if these other customers of the bank had gotten large million dollar loans responsibly for businesses they ran he would not have appeared to be the only witness against and that the trial judge himself said reg had to be believed that's how close this case was it was you and him they chose to believe you but what i'm saying is they didn't play fair with respect to whether reg guus should be believed one of the things we look at of course is whether we're made any difference and in addition to filing these false loan applications is also charged with now is that a those different counts of false applications or different counts or other but they're related and we do not agree that these are false applications that's the government's theory and they held back anything that didn't support their theory it is in the in the accurate application but the word false goes directly to this issue of there's no knowingly commit a crime and everybody admitted in this case that there was rampant mean first of all you want it you don't want a fair trial i think you meant you didn't want a perfect trial you do want a fair trial is a close case i don't know why this is a close case then i say there were twenty or so other people that were charged you say there were hundreds of something who were not who had these blank applications who would have corroborated the defendant's testimony that when you go in there with blueprints and your business plans they say just give me your name rank and serial number and part of it anybody else claim that there weren't hundreds of other blank loan applications the defense lawyer didn't do his job he didn't interview the bank tellers at all he didn't get any of the applications he didn't file any motions in the trial was there any dispute about whether or not there were lots of loan applications of your guy and others that were not completely filled out that was brought out during the trial was it not government witnesses for the first time through fordham and was it agreed by everybody during this trial that there were lots of other loan applications that were not completely filled out i would not say it was agreed i would say it was raised peripherally cross examination so i'm not telling you that the issue didn't come up what i'm saying is it didn't come up in time for the defense lawyer to get out there and hustle and get people into court to say i was told the same thing by doesn't that go to your ineffective  claim i think they're related not to whether the government in some way withheld things that should have been turned over because it sounds like you're saying that there were it's not like there was a smoking gun from one particular application you're saying this was the way the business was being done and there was plenty of opportunity as you say he didn't do his job to delve into that as opposed to whether the government should have thought correctly that this was exculpatory material i mean isn't that where you are starting to go well i would say that the brady and the ineffective assistance in this case uniquely like no other case i've ever seen i've been doing this for thirty years are in twine and here's why in ramona's verse of birth kids you have a case where the circuit reverses because you don't go out and interview three critical witnesses and what i'm saying is the defense counsel didn't know he could get good testimony from the bank tellers and we know that because at sentencing we have deb bullied exhibit which is part of the sentencing record saying we put this into a computerized form and it went to mr arguably on car loans but if we had been permitted to expand that you would see that the testimony of the government witness saying there were hundreds of these loan applications filled most is the word that mr vardaman used mr martin said the same thing in her testimony the applications are what drive you to everybody fill out every line now what he said in this really is very hard for me to understand in the protective order documents that the court refuses to release so you can review them in the protective order documents he specifically says the defendant probably didn't know about the increases on what are called offset logs to take out original loan but because you can't pay it back they increase it up and up and up and the defense counsel doesn't catch that in the seventy four pages that brennan turns over the weekend before the trial that's critical and i say well brady is still about sentencing i should be able to bring work news back i should be able to ask the questions and if the government knows the offset numbers are at least questionable when regu is himself said he probably didn't know how can she argue to the jury he did know or to vouching for someone you know has questionable credibility and can you continue to do that at sentencing and remember this case isn't just about a new trial it's about a remailer because if you have him properly calculated the guideline and given him an extra two points you're putting up in a higher range so you get started out by saying there were two points you wanted to hit ineffective assistance second rate not not the sentencing that's  let you know we have a short time i just wanted a day i shoes for us are is this constitutionally fair did you or your second your second constitutional point is the ineffective assistance exactly does he have to do his job does he have to interview witnesses why does he get this to ineffective assistance in this case because it's clear on the record if this is one of those unique cases where he says it himself he doesn't know the names of the witnesses in the open he doesn't know the amounts he says the defendant hid money in banks in his opening statement remember he's the defense lawyer not the prosecutor the prosecutors decide to bully the defendant even before the trial starts by saying judge we got a real this guy  i think you can see it in the it's in the first three pages before the trial even begins and the defense attorney isn't even objecting he's not filing any motions in limine a with respect to things that don't belong in the trial that have nothing to do with the federal credit morning your honour's my name is bridget brennan and i represent the united states the appellate onces court to find that the government the trial court and trial counsel all violated his constitutional rights without any record to support it a record that he has the burden to make and he didn't do the trial court even found in two separate rulings that the defendant i'm sorry the appellant had not made the appropriate record to support the very arguments and assertions he makes here with respect to the first two assignments a very your honors i would point out for the court that the defendant called this a close case it was not a close case this is a case where mister admitted to three federal agents that he bribed drug use and that he submitted false loan applications in connection with this scheme involving mr argues in the credit union in order for the appellant to be granted relief on the first two assignments error this court would have to turn brady on its head it was his burden to prove that the items about which he claims are disputes works for terri that they were suppressed and that there was prejudice as a result the blink loan applications of other members and a credit union that was so rife with fraud that is russell martin testified went from conservatorship to liquidation in just one week does not exculpate th defendant he admitted at pages sixteen forty nine to sixteen fifty that he signed all of the loan applications that were part of the government's relevant time period october thirty one two thousand and three to january twenty fourth two thousand and eight that's not in dispute the fact that items were not fully included he testified on direct that he had the opportunity to review those and that he put in there as he said what he was told to put in he even got the opportunity to read sort of mind that area on redirect page six hundred ninety one the fact that there were these incomplete loan applications was never hidden from the defense or the jury in fact the government was able to count prior to this argument no less than seventeen computer generated loan applications but what's emerged was able to count yes from the gov the trial evidence your honor the exhibits entered at trial no less  even had the white doubt about which the appellant complains he was never shown are these seventeen on applications for once and involved the defendant or other for the defendant your honor the indictment here for the claim seems to be not not this guy's loan applications and what he was told and whether they were blank or not but that that this is what's happening with all of these other bar it's still a little hard to figure out how that six call just because other people are cheating the credit union but putting that aside could you address yourself to his basic claim that somehow he was going to either impeach or provide evidence to the jury because this is happening with that he in fact was taking these kinds of loan applications as part of the fraud scheme and as a result of being bribed by mr beck if we narrow this down a little bit he said that counsel seems to be saying that he just did what he was told and to the extent that the jury didn't believe that that testimony would have been enhanced if he had had a whole bunch of other bar rules coming in saying i was told the same thing i did the same thing now i guess we have to also know whether they're also defrauding the credit union at the same time but speak to the question a little bit more narrowly about what difference it would have made if other borrowers they were told the same thing and did the same thing it would have actually it would have had no difference in favor of the defendant and certainly all these other borrowers were known at the time of trial as one knowledge it could arguably go to the mens rea requirement couldn't it if they weren't intending to defraud somebody they were just doing what they were told to go to law and that seems to be the theory here where you and i would point out that then dykeman charges violations of thirteen forty four one and two so intensified vs knowingly providing a false and incomplete loan application they would be two separate things for the juries consideration moving on to the issue of calendars the appellant raises this issue and again there's no record to support it there's no acknowledgement except for these this reliance on post trial interview notes of an investigator which are not part of the record certainly weren't available at trial but he has the burden to show that those records actually exist he claims in his brief that the f b i seized those that's actually not true and trial testimony is counter to that russell part of the prosecution team the prosecution team consisted of the united states attorney's office the f b i and the i r s the court also recognize that whatever records the government had in its possession that it attained from the n c u a was done by subpoena this notion that these records exist he has not met its burden to prove that those calendars existed has not also proven that they were suppressed by the government similarly in relying on and in an argument here to relying on again even if they existed this calendar as i understand it was to show that other borrowers met with a credit union president on the days in question when the defendant met with right yes was there any was there any doubt about that no there's absolutely no doubt about it so regulars testified on page id twelve ninety five that he was bribed by no fewer than fifty credit union members and had taken hundreds of bribes mr gore you testified at trial page fourteen hundred that yes he saw the appellant here meet with drug use privately and then close in time he took reg use to third party bank to make cash deposits but on cross examination mr boyd also explained that there were other members who may close in time with mr refuse so the weight of that testimony the challenge that testimony was all before the jury they had the opportunity to weigh that well let's say there are a couple different sources that this cash in envelopes could have come from on a given day that was taken to the bank seems to me jury believed one side didn't believe the other but again putting that off to the side there were also bribes by checks were there not yes your honor i think was there any dispute about the checks being written no he acknowledged signing them into was  claim made as to these checks the check amounts being for some legitimate come out versus bribery where the defendant may have your honor but so there were several witnesses who crockery of mr i gues on the issue of bribes and how the fraud scheme was actually that check was made out back to st paul credit union there is no explanation for why that would occur and jo koy a bitch even testified that there is no legitimate reason a financial institution would write a check back to itself from a loan transaction now that the appellant did it various times tried to say that he made payments and he did make some payments but i was cross examination when the payments he tried to claim he made was a thirty thousand seven hundred three dollars payment which was actually a deposit into a share account so that he could immediately write a seventy seven thousand seven hundred three dollars payment to get a mercedes benz so the issue of whether or not things were actually deposits were legitimate payments was clearly a issue during trial your honor with respect to the challenges against the trial court because i will not address each of the items about which the appellant claims were withheld because he's not simply not met his burden the court would like me to address a particular one i certainly will but at this time in the interest of time i'd like to move on to the challenges to the trial court the trial court consistent with rule six eleven a and united states versus hunt maintained patiently an orderly trial and took into it into its consideration at sentencing the relevant information in particular relevant information with respect to mitigation in favor of the  it's here though that the appellant's willingness to take little clips from the trial transcript to try to distort the entire proceedings becomes very apparent the appellant claims that he was not given the opportunity to explain these computer generated loan record belies his assertion that he wasn't with respect to not filling out the loan applications and then being computer generated it's important to know he made that point on fifteen fifteen eighty six and again and redirect  page sixteen ninety one it's also important to know that at page twelve forty five mr argues explained that the information on those loan applications comes from the member so what little information there was on those computer generated loan applications that information came from mr show like with respect to where the money went arguably an irrelevant point but from page fifteen seventy to sixteen forty appellant had the opportunity to explain his various businesses his architectural drawings payments to vendors and other things related to these these businesses when the government pretty late in this portion of the testimony objected on the basis relevancy the trial court overruled it he complains about interruptions he made a reference even here today about the trial court saying reel him in your honors i would like to point out that again because there's been clipping if the court were to review with the entire trial testimony government three go to government agents were interrupted during their testimony because they weren't either answering the question that was asked or they were sort of speculating on what others thought or same sort of consideration the same six eleven a consideration was given  to the extent the defendant was treated differently as he argues it's his own doing at the very beginning fifteen eighty nine the court said to the appellate this is how we answer questions you answer the question that said you don't want to go rolling you don't want to be storytelling just answer the question that's asked difficult given certainly and it was in this case the record shows that the defendant did not want to follow that instruction even though he had knowledge that he understood what it was and while the appellant focuses on page sixteen forty four the court's comments and direction to mr macdonald the trial counsel here he doesn't give the court page sixteen forty three which he made a very similar outburst saying i'm here to tell the truth and the court said please don't editorialize just into the question mr bush over very patiently and not even four maybe five questions later the  outbursts and at that point yes the court looked to mr macdonald to streamline the questioning to keep the defendant within the rules of evidence and to maintain an orderly courtroom that's all the trial court was doing otherwise all the points he wanted to make he made and there in the record with respect to sentencing for nine pages the defendant went on almost in violation of u s versus hunt saying how he was innocent of the charges the court patiently waited and then finally just stated this is not essentially this isn't sympathetic in the court actually directed the appellant to what things the court would consider in mitigation he helped the appellate which is why he got a mid range sentence with respect to the last calculation for the same reason that the other members loan applications are not relevant they would help in a loss calculation either this case was always about this defendant's conduct his personal loan account his business loan accounts that was the university issue and the unit before the cherry what happened in other accounts the rifle fraud throughout the credit union the absolute destruction of a credit union that had been in existence since hundred forty s everybody understood what that was he was a part of that but he was only charged with his part of that in the last calculations are the same he wanted my time is running up so i will simply say that the trial court has ruled on the before the problem started up that may be found at page id eighty four slash one thousand that's document sixty seven page thirteen lines eighteen through twenty five and he says which i think bluntly from an efficiency standpoint will label the pencil walk the vendor through his testimony in some sort of way where he can maybe be controlled a little bit bluntly is exactly what he says right before he testifies in his own defense in his brain a just you saying this is wrong i'm saying it's wrong for the prosecution before the trial begins to say judge you should have a bad impression of this defendant you should think he's not going to be able to control himself and if you look at the transcript you see it wasn't really a difficult witness to handle it all he didn't go on long rambling rants and i don't know how a defense attorney could possibly agree to this pre roll before opening i don't understand why he would not jack to it when miss brennan got up and sa had the experience of meeting this defendant and i've talked to him and i do have some concerns that when he gets up there and takes a stance he's going to just start blurting out what every wants to say that is to the court of the jury to the defense attorney to mr de s attorney who was her trial counsel because the court my point is i'm just completely mystified by whether the lawyer was right or wrong in the characterization of this defendant the lawyer had a concern brought it up to the court and the court simply said would courts generally do are you saying this somehow and you're not doing as an excuse me may i finish are you saying this poison the trial with the judge you're right i don't i don't get the point you're making my point is he was steamrolled from the beginning to the end the defense attorney did not object the defense attorney did not file motions in limine a the defense attorney didn't do strong be steamrolled because the judge said don't let your client was what the judge said is relevant prosecutors said well that's all i want to make you ask for where is that on the record i told you the issue is whether this case is close i asked you where in the record do we find out why the defense lawyer did certain things or fail to do certain things because the absence of that information is why we typically don't take up ineffective assistance and direct appeal so as that is what you just said is exactly that's the answer that tells me why he did or didn't do things well i think you have to determine that yourself why he did do it you're ok with him got it and now i understand the issue is reg if you withhold  applications you're not learning about red gooses false creation of white out applications for other people that undermines their chief witness that's what's unfair here you had a witness you knew was a bad witness when you first indicted this case you had six counts you brought the defendant in for a proffer he told you his entire story then you added the false loan application counts no defense attorney in their right mind bring somebody in for that proffer with those questions and you know it's ineffective assistance well that's not in let him go and talk to the government nobody will even know that he let him active assistance because you learn the government case and you don't do your job you didn't get the applications you didn't cross examine right guus they're only witness and i do think this is a very close case and i would say to you that this isn't a picture perfect trial the united states attorney started in opening and he said this isn't about what he did with the money and then he proceeds to tell the jury what he did with the money when it's convenient for him he has a pool of patio we have a google picture from satellites above the defendant tries to say i did that with my sweat equity in the judge says objection you're not allowed to talk about how much it really cost the ira sage and says it's a five hundred thousand dollars house sells for two hundred twenty thousand there's never any fairness about what they bring in this prosecutor argued that in closing the defendant had sold the wedding ring of his wife who sits in court with the wedding ring that was inappropriate was also inappropriate to say you went to a casino and blew the money at a casino when you didn't have any item is asian and it good for them tauriel misconduct claim now i'm saying as a college versus whitley it is that one thing it's a collective if you find there is a brady violation you add them all up this was an unfair trial constitutional proportion because they didn't play fair with the defense attorney by giving him the one type of document that would good was not a credible witness and it ties in to ineffective assistance but the most important part of this case is braith we should send a message to the united states attorney and to all of the assistant united states attorneys i chance to get their papers together and then the clerk may call the next