morning you pronounce your name morning runner kevin rich thank you mr richer we know it did you were appointed to interview criminal justice act yes your honor the court wants you to know that we deeply appreciate your willingness to accept the assignment thank you your honor in this matter patrick j kiley the constitutional right to a lawyer with undivided loyalty is even more fundamental than the constitutional guarantee of a lawyer who is competent and that's because the promise of undivided loyalty is a cornerstone of our adversarial system and undermining it threatens the integrity of the system that's a core premise of this case and it's a promise that the supreme court recognized in the  sullivan case which lays out the standard that the court should apply here in sullivan the supreme court said that if a defendant can show that his trial counsel operated under a conflict of interest and that conflict of interest adversely affected the representation not the outcome of the trial but the representation provided by that lawyer that's enough to show six of them in violation and that's what we have here mr kylie's trial counsel m labored under a conflict of interest that adversely affected his representation and so mr callous conviction should be reversed the conflict that mr mock mood confronted at the beginning of the trial derive from his connection to the trevor cook ponzi scheme for which mr kiley was charged mr mahmood faced potential criminal professional and civil liability arising out of his conduct and it's important to note that under the cases that have evaluated sullivan in the context of attorneys personal conflict of interest they have held that it's potential liability not a lawyers actual liability not a lawyers guilt not a admitted fear of liability not whether or not an investigation is ongoing or the lawyers been charged it's just the potential liability that creates the conflict we said at some of these cases in our in our briefing and if we look at the levy case that was a case in which a lawyer face several different kinds of conflict in his potential in his representation of the defendant and the look or look at those independently one of those areas of conflict was unrelated criminal charges that lawyer had faced in that same district those had been resolved at the time of trial separate from those criminal charges the lawyer and levy faced a conflict based on his representation of a  codefendant who had fled and there was some insinuation that maybe the lawyer had some involvement with it there was no investigation by the government that that lawyer had been involved there was no charge that the lawyer had been involved but the second circuit the lawyers behavior was even slightly questionable in connection with the defendant who fled that created a conflict and in the government's response brief they pointed to levy and said well and levy that the lawyer was under criminal investigation we don't have that here but that if you look at the levy decision it made clear that a separated out the criminal charges from the lawyers flight so that's one of the cases that now they're the a lawyer was awaiting sentencing right he had actually been sentenced by the time trial arrived but again the court looked at the conflict arising from the criminal charges and the conflict arising from his connection to the other defendants flight separately and it actually said that the strongest evidence of conflict in that case was the lawyers potential connection the defense flight conduct that had been proven there was no investigation no accusation that he done anything wrong and that's consistent with the principle that if a lawyer is afraid of criminal activity in that case the investigation was beginning or under way about when the first agent arrived at the scene to arrest the defendant that case he heard multiple toilets flushing simultaneously in the house and later on a single closer to flush in sequence  government agreed to a stipulation that zaps lawyer had not been in any of the bathrooms in the house and had not flushed any of the toilets so if that's lawyer had not been in the bathroom of course of the government to flush the toilets and there were twelve flushing simultaneously at minimum there had to be two people other than the lawyer in the house of that were distant but i thought the third circuit said he was the only witness and that was the reason it was essential i don't believe that that's that you think that's you then i have the third circuit said that if you if  but that was about as far as things went and the d c circuit determined that that was grounds to at least hold a conflict here and require that the defendant be informed of the potential consequences have separate conflict counsel evaluate the case department that government and the court and the defense attorney agreed to a stipulation that prevented the mention the defense attorney at trial and all these cases of the fax from may be different than the case we have here but they all stand for the principle that when a defense lawyers afraid of liability a conflict arises what generates that fear i think is not relevant to the analysis what's important is that there are some objective facts that show that a reasonable person would be afraid of criminal liability and w victim funds that formed the charge of a money laundering count in the indictment and by bringing the indictment and bringing this con the indictment the government signal that this transaction was illicit there were two people involved in the transaction cook i mean erupt again is de facto i thought the district court here found that mahmoud did not know it was fraudulent when he accepted the one hundred thousand and thus could not be liable from on the money laundering is in the district court find that in this case well we cited some cases no reply brief regarding the issue of attorney self serving denials in the context of a conflict evaluation under sol oven the second circuit the fourth circuit the fifth circuit and the ninth circuit have all held that when  point to the beyond one hundred thousand dollars there was a and a check from a bank in antigua that was comprised of victim funds that mr mock mood attempted to convert months after the curtain had been pulled that back on the fraud and at  bank and to if you look at the appendix page fifty six it is there's an email from the bank to mr mahmoud saying we can't send you these funds via wire transfer we have to send them via another substitute check that substitute check it's my understanding has never been located but by attempting to convert these funds mr mahmood committed a crime now at his at the twenty two fifty five hearing mr mahmood testified that he had tried to deposit these funds in his bank account to see if the check was good that lame excuse is about as credible as a promise to find the real killers the idea that mr mahmood was taking victim funds and deposited in his bank account at a time when he knew they belonged to the receiver and ultimately the victims of this fraud as off and beyond ridiculous and so if you look at the the self serving denial with regard to that particular event it's obvious that mr mahmood is trying to protect his own skin now and if he's trying to do that now of course he was trying to do that back then so any findings related to the credibility of mr mahmoud's testimony w because of the fear of potential liability and because the jury heard evidence of mr mahmoud's connection to mr a conflict possible conflict exactly exactly so he was referred to multiple times by other witnesses as the recipient of one hundred thousand dollars in laundered funds he basically conceded all the elements of money that discussed mr mahmoud's potential conflict with regard to other witnesses that he had represented and with regard to whether or not mr mahmood would need to testify as an essential witness in the case and the argument was made by mr mahmood i don't need to be  and regarding mr maher whose continued drop is going to well the filings from the conflict hearing show that mr kiley was ok with mr mock would continue to represent him but the full contours of the conflict were not discussed there's no discussion of the attempt to have them from knowing about it was never just going in so doing different is own reputation of the experience of right at the hundred eighty three thousand dollars was never raised by anybody obviously mr mahmood had good good reason not to discuss the attempt to get those monies back but the jury did hear that mr mahmood was connected not just to the hundred thousand dollars but also to another one of the defrauded investors named who was at the center of the government's claim there's an e mail thread that was entered into evidence as exhibit one hundred seventy seven at trial in which mr speech she was e mailing mr kiley and asking what's the status of my investments well how much do i have what acco conversation mr mahmood if it's ok with you i'll continue acting as the conduit between you two there was no explanation at trial of what any of this meant so when the jury went back to the jury room with exhibit one hundred seventy seven they're left with an e mail that's that states that mr mock mood is the individual with information about mr theses investment and the clear implication he's the one controlling it this e mail thread and the collapse of mr species investment was referred in opening and closing mr mclachlan actually in his opening call this a good intent item with regard to mr kiley the collapse of mr investment will a jury hearing that is naturally going to presume if it's a good intent item for m it's a good intent item for mr mahmood because he appears to be the person who is driving the decision about where to put this money is in control of information about this investment whether or not that's the case was never discussed a trial mr mahmood did not cross examine m there was no explanation offered to disabuse a jury of the obvious impression that mr mahmoud was to want to control the investment so that on top of the hundred thousand dollars which mr mahmood admitted accepting and there were multiple victims who testified very movingly about the damage that's done to their lives so of course the jury is going to be looking up from the jury box and mr mahmoud listen the person say my life savings have been stolen and the person who benefited from that is sitting at  table representing mister and that was an irreversible taint that could only be alleviated by obtaining substitute trial counsel of course taking that step is something that mr mock mood was not willing to do and not willing to recommend there's no evidence that that was ever recommended mr catley but it should have been at the minimum there could have been a stipulation preventing the mention of mr mock moot as the recipient of his funds or redacting his name from these e mails that wasn't done either and twelve i handled the direct appeal i handled the twenty to fifty five on the evidentiary hearing before judge davis in connection with that matter i want to start sort of from a bird's eye view of the legal landscape here it's kiley who bears the burden of proof here i think we all agree that sullivan forth this standard of decision so mr kiley has the burden of showing that mr mahmood suffered from an actual conflict of interest during this trial that adversely affected his performance and so to use the parlance of mr lee's own theory he had the burden of showing and has the burden of showing here accused of committing a murder trial number one resulted in a conviction of the first defendant and then there were two acquittals that followed and defend a number one side and wait a minute here this is a conflict how can these two lawyers represent me and my two co defendants that's an inherent conflict of interest concurrent representation and the third circuit said yeah that's too rich for our blood we think that's an inherent conflict that requires vacation of the convention the supreme court said no that doesn't get it done potential conflicts are not enough to get a defendant out from under the prejudice prong of strickland it has to be an actual conflict and it reversed on the ground that there'd been no showing that there was a real divergence of interest have to show an actual conflict and let me say something rather fundamental there is no case anywhere that stands for the proposition that a lawyer who is retained by a client who's been accused of making his living by fraud has an actual conflict of interest for receiving a retainer from that client there is no such case the stance for the opposition i have looked at all of these cases where actual complex have been found and let's take the concurrent representation cases and suck them to one side for a moment they fall into three categories where there were an actual conflict has been found and this case isn't in any of the three categories first there are cases where the lawyer is the only plausible alternative perpetrator of the crime and that's up you know there was a point in time when the only two people in that house in lawyer had a come a concurrent conflict of interests i was setting that aside in that case the lawyer represented a guy who pled guilty to i think a burglary who said defendant number two did it with then he brought defendant number two to trial and put the guy that pled guilty on the stand the say that i didn't do it with me and on cross examination the prosecutor pointed out that that lawyer representing you mr defendant is the same guy that represented the burglar who pled guilty and said you did do it and judge richard s arnold lete of this court so that's too rich for our blood that's an actual conflict because he's representing two different defendants in the same burglary case not sure that at the end of that opinion that the concurrent matters or most of what you said matters because the end ins with a credibility issue where of the closing paragraphs because a lot of what you talk about the court doesn't seem to be lawyer obviously suborn perjury he took a defendant he had pled guilty who had benefited from saying the guy on trial did it with me and put him on the stand to say that i didn't do it with me and the the cross examination made clear that that lawyer was responsible for both sets of inconsistent testimony that is a conflict and that is goes right to the lawyers credibility and derivative lead to his client's credibility this case has no resemblance to that your honor here the only thing that this jury knew the only thing this jury knew was that mr mahmoud had received one hundred thousand dollars that's it the jury didn't know about the hundred eighty three thousand dollars check from antigua which by the way wasn't sinister at all i can talk about that if you'd like it didn't know he was at the van dusen mansion meeting with people in connection with his representation of highly it didn't know anything except the receipt of the hundred thousand dollars so judge by in his dissent in the direct appeal just was misapprehended that the jury knew certain things that it didn't so getting back to the case is now to one as a concurrent representation case the cases where the lawyers own interests conflict and war courts have said that's an actual conflict fall into three categories and one is the lawyers the only alternative purpose that's up your orders there was a point in time where just the lawyer and the defendant were in the house flushing the toilet and the lawyer stipulated in front of the jury that  edelman in this district in the circuit where the lawyer was actually under investigation and the defendant went with the conflict so that's the second category the third category is where the trial evidence shows that the lawyer was committing the crime with the defendant fulton for example in fulton the government witness that lawyer was gott a witness said that the lawyer was stealing goods or was buying stolen goods from his client we have no quarrel with those three conflicts of what those three categories of cases were lawyers own interests have because there was there was no i'm sorry your honor i talked over you i didn't i didn't hear your question go ahead i was asking why you think this isn't in the third category on the theory that mahmud was involved in committing crimes there was based on the evidence of trial or even the evidence of the twenty two fifty five there's no there is no evidence here that mr mock mood was involved in any way with trevor cook ponzi scheme he did he never put on money laundering he received one hundred thousand dollars of money that judge davis found as a fact based on his testimony mr mahmood didn't know was dirty when he received that i would suggest that's a clear you know a clear error issue of before this court we had a twenty eight about the one eighty four was that in the trial no that we did that came out of the related case your honor we didn't even know about that at the time of the trial and if i may talk about that what about the fact that he violated the court order on  received the money in july of two thousand and nine the freeze order came out in november of two thousand and nine during that period of time i was working very hard on this case i had earned that money it was no longer h from being his retainer that's what he said worded for you know what a judge davis say about the judge david finding he didn't make a finding one way or another specifically on that point but in general it's pretty clear that he what adverse effect can be inferred from this record mr mahmood defended this case from opening statement through closing argument by saying that money i got i got from trevor cook the kingpin kylie didn't send it to me i got it from trevor cook the bad guy the guy everybody at the trial you know was referring to is devil spawn and it came from the currency program now if this guy were afraid for his own penal interest if you are afraid that he was going to get charged in the one nine hundred fifty seven case if he was concerned that the money would be clawed back by the receiver penal or reputational interest at all concerned at all about his receipt of that fund those funds he would have defended this case differently his manner of defending the case was let me go on and finish was something that i think is very important and in the background here and really not raised in the brief there is a very powerful countervailing amendment a necessary witness within the meaning of rule three point seven of the minnesota rules of professional conduct i encourage the court to look at the transcript of that hearing because what highly makes clear beyond per adventure is that he wanted mahmud as his lawyer we would just as soon have not had mahmoud as his lawyer frankly the guy was a pain in the in the rear end to deal with but mr kiley that was counsel of choice for the district court under these circumstances to remove mr mahmood his counsel when there wasn't a shred of evidence that he helped trevor cook conduct this ponzi scheme and not a shred of evidence that he knew the hundred thousand dollars was dirty when he received it would probably have been reversible as a matter of law under this court's precedent and under supreme court precedent now what was going to be a case from st louis or the court against council of choice many cases like that so council of choice is a doctrine that applies to the non indigent defendant if you hire a lawyer you get to have almost on review will say over who that lawyer is going to be is  so obvious that the hammer should have been obvious enough to forestall i may provoke prohibit him from proceeding a day farther i think that's what their argument is and i'm i'm out of time i make one closing observation mr kiley is in alleging in this court that mahmoud suffered from such a profound and constitutionally obvious conflict that he couldn't function  being seen with a lawyer too dirty to represent mr kiley nobody noticed nobody food for thought  give you two months thank you your honor i appreciate that just very briefly with regard to the food for thought that mr mclachlan offered if people don't notice a constitutional issue at trial that's why we're here that's why the eighth circuit exists to help correct problems th were noticed the first time around the government seems to argue that if it doesn't know about a crime existing then no conflict can exist so with regard to one hundred eighty three thousand nobody knew about one hundred eighty three to try and protect by hiding things at trial and finally with regard to this idea of wavering that mr crowley has the right to choose his counsel that is true but a illuminated if you're going to proceed with a lawyer who is obviously burdened by a conflict of interest involving the lawyers own criminal liability there needs to be some knowing and detailed search of what that means for the down implicating mr my mood that was the first signal but in fairness to judge davis and mr mclaughlin they didn't know all the facts that were relevant at the time the trial began because mr mahmood was engaged in conduct they didn't know about involve the attempt to convert criminally derive proceeds