we will begin by calling the case this morning of the united states of america versus neil de morton mr what's the morning your honest good morning  this court's traditions are such that we are never completely wedded to the clock and even less so these days so we will  proceeding went forward that is the underlying proceeding in the supervised release vocation matter and then beyond but as i understand court's directives to her but you didn't raise this issue during the contempt proceeding itself in that right now i did zero risk consistently challenge  hearing to is more than require to answer even though there was no new unity counsel who were not representing a party at a particular stage of the proceeding but it does seem from my understanding of the record that you're correct and  two order that's correct ron and and also let me ask you a not really interested in hearing from the smith  that is to say that her plea of guilty affectively went to those matters which she would have claimed to have been privileged and therefore the plea itself extinguished her privilege against self incrimination is that your understanding of the government's position yes or why i think correct that because there are other agreement he said he didn't have any idea what they were talking about paraphrasing words not and but the court went ahead anyway and allowed  counsel the fact that you had an attorney who was standing who may be licensed made a practice to some degree with oh doesn't mean that they're particularly knowledgeable about the area that they're being jurisprudence would suggest would it not that a direct appeal of this kind is not the juncture at which it is best to be raising an issue of ineffectiveness relying upon her plea is effectively extinguishing any clean privilege she might have had what kind of analysis the district court go through that would have made it clear both on the record and for our purposes that there was a coincidence if you will or at least an overlap of matters that a series of crimes and supposedly was going to testify to matters that would be helpful to the defense in that case just like in this case we didn't have an immunity case and there's a very short period of time for them for and then we have these proceedings going on with the attorneys telling them one thing and the judge's turn or something else i think the court needed to go further in its well and you you referred earlier to the cooperation agreement and i assume your position is that the cooperation agreement by itself would not be sufficient that that's correct so i confess that having been a prosecutor for some years and then having spent eighteen years and two trial courts  have never seen a situation unfold quite like this one in my experience when a witness takes five and it's it gives way to  a grant of immunity which requires an order in most instances differences in state practice and federal practice of course or it requires court to make terminations that the in vocation is addressed to matters that the witness has already pled guilty to and they would need to be determinations made specific determinations made in that regard and i don't see that the record covered that but i would be interested to hear what miss myth has to say in that  is the failure over the material witness to appear it puts i think the courts the lower courts and council in an unusual situation where we have trouble it's my it's i think if that were morning your honor did you snip a pairing on behalf of the united states good morning miss smith let me right out of the box ask this in the government's brief if page sixteen only because immunity was a privilege that was not afforded under these detail talitha of the circumstances what i can ask the court to consider is that judge gomez throughout the  i we believe expressly provides the contours of the remains which includes a testimony if required by the united states that the defendant or miss morton participates in any interviews and provide testimony in any subsequent proceedings and your honor the benefit of that agreement was in fact realized by mr morton at sentencing what ms were not oath for the government the forms of cooperation that were set forth in the cooperation agreement then the government would have the authority would have a basis and the right to seek to withdraw from the plea agreement that was entered into this case right that is correct  the court however can take judicial notice that this would have been the rd such proceeding that miss morton would have testified in pursuant to her cooperation agreement she does what what if if she is exposed to some kind of jeopardy or legal liability by virtue of the specific answers she gives to a specific question what import fagan would have been charged with after revocation and the government proceeded to explain that the criminal conduct that was mr franken was being charged with was attempting to facilitate a drug debt collection on associated with the criminal activity and the the government's response was yes the same date the same conduct and i guess yes the government is asking that the court make a leap but it's not a while on the deed of criminal contempt adjudication your honor was one in which miss morton was asked to provide testimony that was with in the course of conduct for which she had already pleaded guilty and was sentenced to so there was no exposure for any additional criminal penalties based on the time for which the incidents occurred she had already pled guilty to those two transaction back in june of two thousand and sixteen and july  specific example that is an example of a charge to which she did not believe ms moore was originally charged by your office with among other laundering which counsel previously stated were dismissed and exchanged for the seven counts for which mrs morton did in fact  might not her answers to the inquiries relative to the telephone call that was captured in the title three could conceivably open her to liability criminal every activity that was involved in a conspiracy no your honor because the play agreement at specifically states that the government will not charge any further charges and bring any further charges a rising from the same facts and circumstances that were involved in this conspiracy that will language were was this conversation involved in that same conspiracy with which she was charged and who seen transaction for which miss miss morton pled guilty was incorporated in the overarching conspiracy charged in count one that count was dismissed and it was to protect miss morton from any further exposure where relevant conduct would have been an issue at sentencing so that was part of the negotiation and we did in fact and it was in compassed in that count one conspiracy there was you're living it let's assume  just assume for argument purposes that you're correct about the conspiracy charge what was the basis of mr freeh supervised release federal violations while under supervised release mr fagan had just been released from prison having served a fourteen year sentence and another criminal matter before judge come as in exceeding one hundred thousand dollars because miss morton knew that mr alexie emmanuel the individual who she had sold five kilograms of cocaine to that they were friends they had been charged previously in the  to at the time your honor that we had reviewed the title three calls we had already i'm sorry at the time that we discovered that mr fagan was in fact the source of those calls the facts are that if a defendant has been sentenced and receives a ninety six month sentence that it would be reasonable for the government to subsequently charge them with an eight hundred and forty three dollars which only has an exposure of a year virgin islands and that she could conceivably be opening her so well to prosecution bar the u s attorney for the eastern district of your or the attorney general of the state of new yo however i don't think that there's a situation where a district of new york would proceed with a phone facilitation for conduct that occurred here in the united states virgin islands that call was made in our district the district of new york would not have jurisdiction to charge for a phone facilitation count that occurred within the borders of this district again we submit that miss morton clearly  under the agreement would be to testify for all of the criminal conduct that involved the series of events that occurred from her conspiracy which stems from two thousand and fifteen through two thousand and sixteen there was nothing within this requests that was in violation of miss morton's right we've th amendment right we believe that it was an improper invocation as the court so directed and instructed miss  numerous occasions and we believe your honor that miss morton haven't been privy to so many criminal appearances before this judge and fully understood the limitations   counsel charged just one count of contempt does that mean that any instance of disobeying the district court's commands would justify the conviction added that was a quagmire when we were in fact about to charge because there were many instances in which the court directed miss martha after advising her of the improper invocation of the th amendment and she proceeded yet to disobey the court's order to respond your honor we felt however that one charge was sufficient in this case it was not to so if if so one instance after being advised of the improper use of such invocation any one instance your honor is enough to be punished by the court and to be able to deal with that i'm sorry go ahead we believe my next question if we disagree with you some of them the district court was wrong let's say just for purposes of hypothetically speaking we think that the knowing seventy seven of them were in error but two weren't in  trying to address the last question is whether as to whether miss morton's appearance at the at the revocation hearing was an unnecessary expenditure right is that the court's question that's right sentencing consideration but just as background here against the overriding fact that there was a contempt  resulted in a thirty seven month sentence and it does have to do with the necessity if you will the legal necessity of ms morton's testimony at yes the the government of course had the burden of going forward in the burden of proof with respect any violation we all remove in proceedings of this kind and similar proceedings are relaxed we don't necessarily have a formal application of all the f r e s and and beyond the at there was other substantive evidence and i'm curious i think as a honor in hindsight and because the government was forced to produce a nd witness which was not on our witness list who we called as an impromptu witness who had just been sitting in the courtroom and a judge such as gomez notwithstanding the relaxing of the federal rules of evidence where we can rely on on hearsay judge yes your honor that can be done and is very practical perhaps in other districts in our district however our judge at the time to sitting judge gomez required the government to produce its best evidence  do the court he did not believe the plea agreement covering every potential crime she had committed or every potential liability so we have her turning telling her that i am telling the miss smith we will take the matter under advisement