please the court my name is don samuel i'm going to turn a practicing in atlanta georgia along with amanda clark palmer who is with me here today we represent the appellant gregory barker we were also trial counsel in the eastern district of north carolina was charged in an indictment returned in the eastern district of north carolina charged with conspiracy to commit mail fraud to sell unregistered securities and to commit the offense of money laundering there are also substantive counts of mail fraud and the sale of unregistered securities the crimes involved efforts to raise money for two private equity funds the first caledonian was involved in raising money in the early part of two thousand and four january through march or april of two thousand and four the second aspect of the conspiracy occurred at the end of the year two thousand and four through early two thousand and five with mr barker those effort to raise money for a separate private equity fund known as the capstone fund the caledonian fund raise money primary from a man named john colvin the capstone fund raise money primarily from three other individuals each of whom testified at trial the government's theory at the trial was that mr barco knew that the money that was raised for the caledonian fun was raised through fraudulent means it was raised by a man named hollaback  who deceived investors into believing that their investments were guaranteed deceived investors into believing that their investments were insured with regard to the capstone fund the government also claimed trial that mr holland back again defrauded investors through the use of phony insurance policies supposedly insuring their investments and through false representations about the guaranteed nature of their return in addition with regard to the capstone fun mr holland back was operating after having received a cease and desist order which prohibited him from selling securities mr hollaback testified for three days at the trial the trial was three weeks mr hollaback testified for three days is the money was central to the prosecution of this case his testimony was critical in establishing that mr barco knew that the investments that were obtained from the victims with the result of fraudulent activities in gauged by mr holmes back mr holmes that testified repeatedly that mr barker and he had talked about the fact that mr holm back would in essence violate the ceas desist order by selling securities that he was not allowed to do and that mr holland back was using false insurance policies and guaranteed rates of return two other witnesses who testified also were involved in the alleged capstone fraud and that was ms lehman and ms plummer their testimony also was critical to the government's case ms lehman also testified significantly the mr barker talked with her about ways to carry on the conspiracy by opening up a separate bank account and also by refund only money or doing it with what was called the return trip after a trial several months after trial the government revealed to the defense that there was considerable amount of brady information that had not been disclosed to the defense the government revealed to the defense for the first time that mr hollenbeck had been interviewed we knew he'd been interviewed had been given the jencks material but that he had been interviewed pursuant to a proffer agreement that his wife had also received a proffer agreement that both mr holland back and his wife crystal holland back had been advise that they were not targets prior to the time that they began their debriefing with the government after that bombshell was revealed to the defense the government then revealed to the government to the defense again months and months after trial that miss lehman the other critical witness the other alleged coconspirator had received a what was known as a statute of limitations tolling agree but she was also subject to being prosecuted she was told that she investigation for being prosecuted but unbeknownst to the defense we believe that the statute of limitations had already run because the five years already expired since the time of the crime she she had been told that the statute of limitations would be extended until approximately two weeks after trial in other words as we wrote in our brief the damocles sword was over her head during the course of trial unbeknownst to the defense the thought the statute of limitations would run in that she had no motive to curry favor with the government in fact a totally agreement had extended the statute of limitations which meant that while she was testifying she knew that within two weeks of the conclusion of her testimony the prosecutors would make a decision whether to prosecute her or not so we have brady violations with regard to the tolling agreement never being shown to the defense we have brady by laces with regard to mr hall and backs wife being told she was not a target and being given a pro letter we have brady violations with regard to mr hall and back given being told he was not a target before his debriefing and being given a proffer agreement and then we have mr holmes back who actually testified as a trial and says that there defense in essence would not be successful in a prosecution for perjury and they cite the harrison case in the bronston case which is the standard for actually prosecuting someone for perjury but that's not the standard under brady for a witness who clearly is providing misleading testimony to what don't you have to show us that the interview testimony and the trial testimony overlapped because i agree with you that they can't hide behind the distinction that if he was sitting in an interview chair and said that it's ok for him to sit in a witness box and say and it not be true but there has to be some showing that there was an overlap and that he was in fact lying and do you know well the question we were trying to there were if the if the testimony in the interview was totally different from the testimony or if they didn't use any of the interview is a likelihood or not a likelihood that a reasonable possibility that it would affect us and we can't make that prejudice inquiry can we without determining the extent to which this testimony over law yes  has it it's undeniable that he had a proffer agreement it's undeniable that he was told he was not a target it's undeniable these are all facts that the government concedes the government concedes that his wife was told she's not a target before she began the briefing it's the crystal holding back the wife was also told that she would receive this proffer agreement this protection by virtue of the proffer agreement then when he's on the stand we don't know we it's been hidden from us the government hasn't told us about all these agreements and these representations that's the brady violation that's the initial brady violation it is compound it in the file analysis there was no consideration offered to him or his wife specifically for the testimony and you as judge for it meant you never specifically asked the question whether there was or not but there is no evidence on the record that there was any specific consideration for their testimony well we know that they actually got a rule that mr holmes i got a rule thirty five and we cited that and we did question him benadryl thirty five but it seems odd that the government can play hide and seek with the brady information about the existence of the proper agreement the protection he was given the incentive he's given to remain a non target the incentive he's given to protect his wife someone who has you know conceding that he's involved in criminal activity and saying now and he's already in prison by the way he's in prison doing this debriefing based on his prior criminal conduct and he is told you're not a target but we need to talk to you your wife's not a target but we're going to talk to her too when there's an implicit you know agreement we would contend it's something the jury should have known let's put it that way it's a significant piece of evidence about his credibility and his motivation no there's not a promise credibility that was pretty strongly attacked during his trial ever made that point very clear and he did in his opinion he did but why don't you focus in your analysis if you would on judge analysis of this prejudice issue because turning materiality we've got to find it reasonable probability of a different result that you know you're exactly right on the standard and judge david does articulate the standard right but it gauges in what would be more properly described as a kind of jackson versus virginia you know sufficiency of the evidence analysis he says look at all this evidence of barker's guilt and he then goes through all the governments have a chance he doesn't cite any of the defense evidence he doesn't look at it from an impartial point of view like the jury was doing trying to figure out how significant was hollenbeck's testimony he discounts and i put in the brief ten or twelve places in his order where he says the jury didn't have to believe  exhibits introduced where he was telling his own back you may not sell securities you may not make misrepresentations that's the documentary evidence and then the government elicits from holland but if you just read nothing else read his redirect examination the redirect examination of holland back where he testifies over and over and over again all those documents were all just a bunch of lies they were see why a letters what he was telling me to do versus what he was writing to me so you had to believe how and back is get the jury had to believe one back that all these letters were just fakes that these letters were just covering his is covering himself that that's why that's why barco constantly was telling holland back you know you need to not sell security  inder and cease and desist order you can only find and recommend people to me and then home access or that's phone none of that was true that's what was significant about that his testimony at trial and if the jury didn't know about his grave didn't  the information needed for his credibility and i would like to if i could pause for second answer your question about the amount of of impeachment it's true as judge deaver said he was impeached he was a con man everybody knew he was a comment he admitted to being con man but he said it was all behind  he said all that stuff i was doing you know whatever years ago that's when i was committing all these crimes that's when i was deceiving people and now i found the lord and now i'm in jail and now all i want to do is make it right that was his words we didn't know was that he had these agreements with the government what we didn't know is that he had these reasons to try to protect his wife he had a current motive he had a current motive to try to convince the government to let things stay as they were as opposed to all the prior as i put in the brief listen you could have ten prior burglary convictions and the government tells you about nine was it material that you didn't know about the tenth probably not if the jury thinks nine burglaries and enough to disbelieve the person the tenth would make a difference but if you also has an immunity agreement or there's also something else that would motivate him now as opposed to his prior conduct which would cast doubt on his credibility it's the current motive which was different so as the coring case in the ninth saying you know enclosed is your immunity contract and no doubt about it if this is not immunity then i am not going to argue with the fact this is not technically six thousand want to me today this is this was a kind of standard proffer agreement that protected him they protected him from what he said and we all know i mean defense lawyers all know once you get that you cross the bridge you're not going to be prosecuted but you're right it is not a formal six thousand one immunity agreement i see my my time is expired i've reserved five minutes for a bottle thank i'm christine it's from the eastern district of north carolina and with me at counsel table is david brockton and the government ask that you affirm the judgment of the district court in all respects the government acknowledges that pursuant to it something there's been too many cases to this week so go ahead and i could if i could add in on the same point it's really gotten to the point as far as i'm concerned when i pick up a brief from your office i'm looking for  trouble two times last term same thing misrepresentations from my perspective not being fully forthcoming and it's really creating a credibility problem for your office and you need to know about it you need to get the word back and i certainly will communicate the panel in the court's concerns to the office but in this case and in response to the concern about there being an open file type policy there was significant discovery disclosed there are thousands of pages that were scanned and copied and provided to the defendant the defendant was given access to a room full of documents these were our documents on the case dozens and dozens of boxes a bank records and everything else and here there were these four documents which unfortunately the a usa had placed not in the basement with all of the other stuff but had placed in looking determined that these documents would have been disclosed because here's the appearance of and i think you should notice it gives the appearance that the government has made an assessment that there's overwhelming evidence and they're going to survive on appeal so they can do this kind of thing in terms of conducting the course of its trials that's the appearance that you're giving and i'm sorry that's the impression that the court has because we do have a broad discovery policy we provide the defendant more than what is required under rule sixteen more than what is required under brady and specifically so that we aren't making those close calls we don't want to make the close calls we want the what we have and unfortunately in this case there were four documents that were not disclosed and importantly others documents were not disclosed there is not a brady or giggly of violation because these documents in hindsight which is typically how brady and giggly zero issue arises in hindsight these documents were not material and the hollenbeck proffer agreements they were not immunity contracts as the court has noted they provided very limited protection for one interview there was a contract with mr and there was a contract with his wife and there was the statement communicated from the government to those individuals that they were not at this time targets that is absolutely true advising an individual that they are not at this time  target is not a promise that they will never become a target the promise that was made to hollenbeck and his wife was specifically that the statements that they provided during that interview would not harvick statements would not be used against him hollenbeck's wife statements would not be used against her there was no cross reference in the agreement so the couple statements could be used against the other spouse  with respect to how this evidence played in the trial hollenbeck was thoroughly impeached he was impeached on all conceivable grounds given the wealth of impeachment evidence i'm not sure whether these agreements would even make the top ten and that's what the district court explained after having reviewed all of the evidence the court said that there is no reasonable probability that a different result would have occurred h has not as of this time made you any promises have they join appendix five hollaback said they have not now why didn't wasn't an incumbent upon the government at that point in time to notify the court that yes that he had made up the he had been made some promises they weren't immunity contracts but he had been made some promises limited to his interview testimony and i have never been this kind of comments to a prosecutor never but the the increasing frequency from your office of this kind of conduct is is really troubling really troubling and you're standing here today saying that the prosecutor just forgot that they had made a promise to hollenbeck that his interview testimony wouldn't be used against him yes that is what i'm saying and in fact the district judge specifically found as a fact that this was a good faith mistake an oversight and that was something that the district court had considered and how to resolve that this was not intentional there was not any deliberate effort has going for us in this case is the fact that the judge who presided over this trial after looking at the materials that were not disclosed first of all concluded the individual thing they were not and conducted a thorough analysis of that and the same judge who presided over this case and was most familiar with the evidence and the witnesses resolved that there was no that that their confidence in the outcome of the trial was not undermined when this was considered either individually or cumulatively and judged ever made clear that this was not a closed case there was ample evidence of the defendant's guilt there were many witnesses who came forward and spoke about their roles in this fraud and how they were victimized there are witnesses who you discussed actually meeting with bercow and mr hollenbeck during which assurances and promises were made i believe that was miss robin denny there were this was a case in which there were and in a sense it was a puzzle and different pieces of evidence came in from different witnesses and they all corroborated one another and the district court appreciated that and had concluded that even if the this information had been disclosed even if hollenbeck was asked did you receive a proffer agreement in two thousand and nine that those particular statements were protected even if they were aware that  submit to the district court should be given deference the district court conducted a very thorough review of the evidence he published a one hundred twenty page order discussing at great length and he acknowledged that he wasn't going to discuss all of the evidence that simply he was discussing some of the some of the evidence that came in and then he applied the correct legal standard and did it detailed analysis that certainly this is this court is left with a full understanding of what the district court or how the district court assessed and the outcome of this case so the government submit  that the and the district court did not air when calculating the advisory guidelines and there are three specific claims of error that the defendant raises and before getting into them specifically i was like to note that the court announced an alternative sentence and even as even if this court were to assume there were percy general error the alternative sentence based on the thirty five fifty three a factors so to the extent there is a substantive challenge there is a presumption on appeal that it's substantively reasonable and what's important however is that the court that end of the sentencing hearing the court spends i believe twenty pages talking about this defendant talking about the thirty by fifty three a factors responding to the arguments about disparities in sentencing responding to the mitigation mitigating arguments that the defendant up until this point had there can be no doubt that the court discharged its obligation to consider these factors in relation to this defendant and this and the district court can be taken as word  saying these are hotly disputed guidelines issues i'm aware of that i think i got it right but i want everyone to know that this is the sentence that i believe is appropriate and his an up now turning specifically to the different the different enhanced moments with respect to the last calculation the defendant doesn't challenge the monies that he is simply challenges whether the monies that the capstone fun had received well whether all of the money is that that the dot five hundred steve should be held against him and the question ultimately came down to first whether the refund checks they were issued in early january two thousand and five or monies returned to the victims prior to the discovery of the offense and second whether the mon that were part of the interplay there in the middle district of north carolina similarly were monies returned prior to the discovery of the offense and the district court appropriately resolve that these were not first of all the refund checks the district court explained were part of a round trip of the money the mr bercow did not intend to actually return all of that money to the individuals they were instructed about how to indorse those checks over to legacy and legacy was going to then get them back to the capstone fund only wanna of the individuals who received a kept his money there were some that were embezzled there were the remainder were endorsed over to legacy and then to capstone and and the court found that as a factual matter that there was an intent to return that money now with respect to the interplay there by the time the interplay here comes around the defendant knew or had reason to know that this offense had been discovered had met and discussed the situation at that time the offense had been discovered if there was any doubt about that when mr when agent who of the i c c spoke with marco about the offen and confronted him with his involvement that too is evidence that it was discovered now with respect to the broker dealer and handsome and the language of the guidelines is plain if you are a broker or dealer or someone associated with and you were infants involves a violation of security law you get an enhancement it is different from the abuse of trust in which there is an obligation on the district court to find that the position of trust facilitated the commission of the offense the amendment that added the broker dealer was specifically added to reflect the additional culpability  people who have these positions who are subject to additional i do cherie duties because of their licensing or because of their position never last violate the law now as to the number of victims there's no dispute that they were forty the victims and capstone the defendant challenges the number of victims to be considered in college now there's the money is themselves it's fungible once these individuals were defrauded in the money went into a common pot and the government has acknowledged it's not possible to trace a particular dollar to a particular person and then to a particular dispersement to the share pro rata law exactly let's take a look at the jury instructions in this case i know they were overlapping players or similar objectives but do you think that the court should have given an instructional multiple conspiracy no and the law in the pit was enough to similarity here that perhaps the jury would have been better instructed if there had been such an instruction given i realize it's not the sole test but in this case given the overlapping elements of this you think there was some invitation for confusion here no the multiple conspiracy and struction is not required unless the proof a trond demonstrates that the defendant was only and separate conspiracies i'm related to the overall conspiracy charge in the indictment method that is not met the defendant was not involved in separate conspiracies unrelated to what was in the indictment and some of the factors that are considered are key actors and here you have the defendant franklin asset exchange in hollenbeck and what's interesting is you also have the caledonian fund at one point who is contemplating using hauling back directly and then eventually that darryl law's designs to go way but the idea of hollenbeck raising money directly segues right into the capstone fund you also have the methods of investor recruitment these groups actually the same materials used over and over you have the  filtering of the investments through different funds you have the goals which were obviously to raise money and to invest and also for personal profit and you have the methodology that the funds were intending to use which was the bridge loans to entit seeking short term financing given all of those factors there this was not a situation where there were separate and unrelated conspiracies presented to the jury with respect to the other jury instruction i would point out that the defendant did not specifically request an accomplice or informant instruction what they asked the court to do is provide an instruction specific to somebody who was facing sentencing resign tensing and the court looked at its own instruction no instruction had been offered by the defendant and there is no fourth circuit approved and promulgated jury instructions and the version of horns that was reviewed that we had doesn't have such a pattern instruction either so you have a district judge she was not presented any proposed instruction the idea of someone facing recent sentencing a rule thirty five less was what was occurred in this case can be deceptive if it were not led to believe that we need to make specific requests because when the government tells us as they did this case what we have an open file policy come into the basement at the u s attorney's office and look at everything and we don't know that they're not putting everything down there we're not we're not given any incentive to make specific requests so an open file policy can actually be deceptive can actually be detrimental to a discovery what needs to be turned over government discussions with the witnesses and they were going to find the victims the securities love the securities violations victims you know just writing letters and asking where is their money in just their individual folders that's what the open file was in this case as opposed  to the conversations with the key government witnesses i need to stress to if i can this issue about the perjury the misleading it is our contention that it is the proper standard is not perjury as i said before that the question of whether a witness testified untruthfully back in agreement isn't measured by the same standard as you would prosecute him for perjury we're not asking hollaback to be prosecuted for perjury we are not the government seeking to prove that he knowingly falsely right we're talking about whether the government had a duty to correct a misleading statement the government knew that he'd have these agreements they knew about these proffer agreements the non target theirs and that's really the duty as is the government to correct that information not whether i can be successful you know i'm never been in the u s i know whether i can prosecute someone for perjury and i just with i know i don't have a whole lot of time i as with many brady violations you know sometimes the defense gets lucky and finds that out later usually what happens is someone in the government tells the defense what they found and i can't help when i'm listening to you all talk about these mr that someone in the u s attorney's office did turn this over and that's mr bragman who's sitting here today and i can't help but say that you know but for his you know complying with his duty turning this over information over months later we never would have found it so i just i can't sit there without noting that that he was the one who finally turned all of this nation over to fact we understand that that he used the wrong standard when he goes through and if you read his opinion time and time again defendant didn't have to be believed defendant didn't have to be believed and as i said during my opening remarks we agree with that but that's not the standard under brady the question is if the information had been disclosed would the jury have reached a different result and again i ask the court to review hone backs testimony day after day after day of testimony  and in the end you know in redirect in particular and citations their joint appendix beginning on page five ninety two it's all twenty five pages twenty five pages in the joint appendix beginning on five ninety two where the prosecutor says to hold back the bar could tell you to sell the securities yes the barcode tell you to do this yes did barcode tell you to to do the round trip you know the return of money that made them illegally illegal unregistered  you know what about all these letters from mr barker where he says don't do those things comply with the law don't pay any attention to it that's why hold backs testimony was so critical and yet judge davis says hold back he was nothing he was insignificant or you have to do was look at the documents to expressly extended the statute of limitations for two weeks after trial and why would they have done that other than to keep that threat over her head and then she comes on the stand and also testifies barker is the one who devised this scheme thank you very much