well respected but the distinction of his career his subject of intense is not the standard under four fifty five a by which we judge  dislocation it is a reasonable person it is a reasonable person standard and whether a reasonable person would harbor doubts about judge has its well impartiality in this particular case there are a number of things number of facts which would raise questions about his impartiality the first is shortly after the entry of a plea to conflict of interest type on a services fraud kozik began receiving and received over a year and a half over one hundred forty seven letters which he later described as public outrage letters with regards to some of those letters he wrote back expressing his personal opinion but he was in agreement with those letters well the case was pending before him none of those letters but he also i mean that is he expressed personal sentiment but at the same time he said but i have to look at the p s r but the government urges that i should accept if they can't prove count one but if personal opinion were all that i went on i mean you're right that express a personal opinion but your statement is not fully accurate if you don't look at each one of the letters and and judge them independently based on the contrary he does say that you're wrong but the issue is not his subjective intent it's how a reasonable person because it would look at those letters written in which troubling about this case and i've never seen this before is he never disclosed the letters or his responses in stilwell way after the case was over and shortly before sentencing one and hearing addressing the probation report the objections there to you know there's no doubt that he should not have done what he did should not have written letters first of all and then carry what do you do i mean when i was a district court judge you know you sometimes you receive letters and sometimes you know because they have no bearing on whether or not they're not relevant at all you know if you put them in a fog you throw them away do you send them to counsel saying i received this letter i mean there is no indication in the can is what a judge should do i'm sure judge kosik would be the first to say he wished he had you know not responded to them but the issue really is whether his impartiality reasonably be questioned and we have here a situation that isn't an extra judicial situation it's not he's on the board of a college that's the pla the case you know the defendant the case he doesn't harbor a deep seated animus from arising from a personal situation this is a it's a very conceptual situation involving the case before sentencing shortly before when you discloses for the first time about all these letters he tells counsel for the government in the defense that he did not read any of the letters and yet we find out the day of sentencing that morning where in fact he had made responses he had expressed his personal opinions and that's what brought to recuse a motion at that point because the focus is on whether he exhibited some we still have to hear the case in the jury has to decide the you know this is a smoke process but it will work out hope you get satisfied in the end what what was the worst thing that the judge said in these letters the worst thing i think twelfth zero nine the strong that is very strong admission that these things were done and word minute to have been done and for you for a judge to not have a personal view that this is really pretty bad you know if i'm trying to put myself in that position and we're being disingenuous and we don't realize that when judges and that's the most common question that's asked of us do you ever make a ruling that you you know are sorry you have to make because you have a view that's different for every day because everybody has views i guess juncture what is the what is the remedy is it is it harmless error situation what is the ram i think the remedy in this case with  i think it would given the argument on recusal because obviously his impartiality could be reasonably questioned that goes overall to the sentencing as well and even though mark ciavarella admitted to the tax by a lation you still have a sentencing issue there's two other matters on the re this qualification what i would like to briefly get to the first is if you look very closely at his opinion in which he that time did not contain any public comments relating to more ship having made from which you could i think you can draw an inference that apparently judge  judge me referencing those comments and the public comments that were referring to his public comments denying the existence of the put pro quo those public comments were not on the record any place he had to acquire those from some extrajudicial source from the media most likely but we don't know specifically where but they're not in the record with the slogan kids for cash that would suggest some type of serious animosity but i thought they were found to not have been properly attributed to judge made that ruling on the basis of citing to the filings that were record at that point in time if you go to the filings at that point in time you're not going to fight anything in those filings which be then have to submit to it you know examination by the lawyers if you don't agree and what i'm suggesting is that sometimes where in issue is so fact rhythm as this one was relating i think in light of the nature of the alleged comments that were made these were not offhand remarks these went to the very heart of the case but if the judge didn't read making the remarks the problem is that you are reacting to every use a report maybe maybe a blogger on the internet it's a comment about a judge that itself would be sufficient to trigger requests for hearing is that know it's not i don't think every time there's a blogger on the internet that we automatically renew for week usals but in this particular case when you look at the report that was given it was so spec specific the words were very clear that were being utilized by the reporter that you have really a question of credibility between the judge in this reporter as to particular information how do you resolve that there isn't and quite frankly the candidate should conduct don't require a hearing and you look at a number of the cases we cite some courts have held hearings before different judges others have not there's no clear guidance on any of this  are you contending that there were how long was this trial problems about six seven days in total are you contending that there were rulings made by the judge that were the result of of bias i am wrong which ones i think there's a number of them that's not in your brief and that's not it's not all that relevant but we have to look at the overall context and see whether  i was taking a second look and that goes into the cross examination confrontation of robert powell and mr owens we hade laid out an opening in an opening argument a defense using it to support a lavish lifestyle that there was no extortion conspiracy he was making this up but you got a lot of that evidence and you've got you know the abuse of bills twenty one thousand dollars a month and i didn't see in your briefing or any where an offer of had we been permitted to continue we had these bombshells that we would have used and because we couldn't use them and i  must say you're now making really sixth amendment argument which wasn't made because we couldn't use them and he didn't get have the right to a complete defense where did you tell the district court you know if if you argument in a number of proverbs the first was when we began cross examination of mr pal and it was after the government alyssa krumm how the what they described as the legitimacy of all these withdrawals from these various companies when we started to get into that and started to question him the judge in his own interview and cut us off the second time was with regards to mr owens the prosecution put him up money we had not at that point we had just started to question him about a few of his expenditures when we were cut off it was very early on in the game and then we went to owens and the government brought out about the change in powers demeanor we wanted to cross examine all ones that the change in the demeanor was related to the embezzlement of funds and not this conspiracy extortion was all that related to the extortion issue push you also have the honest services mail fraud charges for which he was convicted and some of the charges really rise out of the does not get us in for what from frank with you get getting back to the cross examination of owens and we were cut off one of the interesting things that are is that the government prosecutors themselves one up bias or just maybe misunderstanding what if you judges understanding as to what you're trying to do i don't think there was any misunderstanding there as to what we were trying to do i think the record is clear especially when you get to experience prosecutors up there explaining to the judge that look they have an absolute right to show that you know his change in the mean as a result of stealing money from the companies so they were very clear on that was no misunderstanding on that the thirty two i'd like to get to the relating to the statements made by the assistant u s attorney and the plea hearing of robert moore in a different case in a different case but relating to the same payments but relating to the intent of someone else well it related to the intense of robert miracle as to the payments that he was making she shivered and conning and in that particular plea hearing the government prosecutor indicated to the judge that there was no quid pro quo as to the payments miracle made to  it is not harmless we mentioned it in the opening and in the closing we made reference to miracles testimony in the trial where he acknowledges that he did not pay a private kickback but it is not harmless oh that's the government's contention but if you look at the transcript you'll see where the government says there was no quid pro quo and we base that on investigation and research into what miracles intent was so what the government is doing in that hearing is they're telling the court look we've looked at these payments there's clearly no quid pro quo here's why we arrive at that decision we should have been allowed to entered use those statements as a party admission we could be substantive evidence this is already admission in their case if the government says something because another case that might have bearing with how they have to inconsistent theories being offered by the government relating to miracles payments to chirality conahan in the mirror we here in the argument isn't what is being said is  when you look at the unequivocal statement by the prosecutor where based upon what they've looked at in terms of a miracle they reach that conclusion there is no quid pro quo had we been able to introduce that although there is in the sense that what they were talking about in america plea hearing related to miracle specific intent and the conclusion of the government that based upon his intent there was no quid pro in the miracle plea hearing what was said it was so important supreme that in should relish trial except you only had one half of it you had the american have now not the other my time is just about up thank you all right thank you very much mr flora on the issue of recusal he basically says that there are three bases for which there is a bias shown by the court the first one is the four letters that he returned the second one is the rejection of the plea agreement and now he brings up the certain other rulings which if the court requires i will address and the third one is that that the statement to the allegedly isa it was a statement he spoke to a reporter when it appears from reading the context of what was said that the reporter overheard a conversation with a private party but let me take them in the sequence that raised by mr floor first regarding the four letters the four letters clearly come from no external sources no information gathered from that essentially what he says i appreciate your views i mean sympathy with your views but and ciavarella and judge conahan entered pleas of guilty and then he got these over one hundred letters and then in the christian letter he said i'm sorry that justice is so slow but ultimately i hope that you find it to be true for those even aren't even statements if the if the if the court's conclusion about an individual derives from the court proceedings then there's nothing wrong with a court saying look  step on the facts i'm in sympathy but i'm not going to let that effect affect me if you look at the cases there are basically three cases that that talk about the  from a magistrate's findings the judge is supposed to look at the findings and determine whether or not there was a there was a basis what the magistrate found instead the judge ordered them to produce in tobacco litigation every opening closing statement ever made by the by the tobacco companies and then he said prior to any trial or anything he said that the back of the industry may be the king of concealment and dissin from ation and the court said said you're getting information from judge in all these cases says but i'm going to be neutral is that here every one of these cases well you know the judge makes some sort of a gut call as to what he sees as it but i'm going to be neutral is that all  i wish i had a dollar for every time a judge would look over at the victim standing before him say look i'm in complete sympathy with you with what you've been through with your feelings toward the defendant but i've got to make my decision base at the the fourth circuit says a judge is critical and strongly worded comments regarding coaching of witnesses is not a basis for recusal the fisker it's a judge's unfavorable but legally sound opinion of a defendant is not a know the difficulty here is that these letters are saying throw the book out this is really really serious and when a judge sentences someone the judge has a lot of discretion and as much as you say you know i divorce my views from you know my personal views when it comes to sentencing that's when the that's when the personal views and the everybody saying throw the book at him and i agree with you it's hard to it's hard to slice and dice that as i'm just being fair why should we not grant a recent thing here that's the one area where i mean the jury found no no objection to jury instructions here you know there's an allegation that sufficiency of the evidence but assuming the evidence is there what evidence would you be looking at you cannot read the pre sentence investigation without seeing house calling it is you think that those letters were scathing read the pre sentence report and feelings and if you are only my personal feelings that might affect the outcome but it's not going to affect the outcome i think we have to take the court at its word when it said my personal opinions are not going to be a part of this decision and i'm  sentencing that decision of where to go between a say a one sixty eight and life because very much we be impacted by the fact that he's gotten a letter saying throw the book out and he's expressed to them you know personally i couldn't agree more course he departed below the guidelines and if a sentence within the guidelines of substantive presumably substantively reasonable in the maxim statutory guidelines there ought to be a presumption that attaches to one below the guidelines and also also i think you have to look at the record see what there's vision basis for the judge to draw the conclusions that he drew at time of sentencing depends upon the point at which you find that there was a necessity for recusal if it is simply an opinion and eat it is simply an opinion a to the nature of the sentence the individual is going to receive assuming you found that to be over the top that i would think you would have to go back for recency to another judge yes if there's an animist that as they say the ent made the it seems to me i mean if you look at the reporter statement i think that's where we're going with your question if you look at the reporter statement i should say that in the by the time by the time that statement allegedly was made and we're not quite sure what it is because it one point when the word quid pro quo comes up the reporter who's editorializing all over this he puts that in quotes when you get to the word prostitution it's not in quotes when you give the word he thought he deceptive the flawed logic of chivalry was reasoning that's not in quotes it seems to me that that you've got a in his memory yeah and those statements are derived from his review of the record his review of the pre sentence report he's having taken guilty pleas from numerous individuals the so you cannot come back and say that that the statements i mean he says that she sold his office that's based upon the record that shows a low opinion  it doesn't show a bias an animus towards him and i think that's the that's the key issue judges can come to some pretty hard conclusions about the actions and the character of individuals based upon the evidence that is presented to them and there is nothing wrong with them commenting upon that it was just despite the fact that he got so many letters only i responded to some because of a concern about look at one could easily infer that he meant i have no i haven't looked into these oh you wrote back and so what did he specifically say in that like that he didn't have tension to them or that he didn't answer them or then he turned over the letters and he turned over his responses to them so he's not trying to hide the ball from anybody he turned everything over to them now if you know i don't think you can hang this case upon a judge makes a full disclosure and then find out that his national statement about it does not comport with the fullness is not a soul is the disclosure innings now this is this comment to the judge difficult for judging judges judging judges who are judging judges right very very tough here what about mr florists point about the restriction of cross examination because he he said that was some evidence that there was as i'm sure as you've seen in court at some point you start to protect your record and there we cited no cases for a position it was an attempt to protect the record present a clean record for appeal  pal who is the owner and owens who is the the chief financial officer we presented records showing that everything that palin had taken out of the business was recorded and was on the books for anybody to see including the cash that he took out to pay to ship is that before the jury it was yes owens testified that we had the records we turned the records over discovery we had the records that he testified as a man from his law for asked how is it relevant how is investment relevant if it's not tied to the money that was paid should roll of the recall should relative to the sand and he admitted exceeding all of the money except for the cash and so the judge says supposing he's right supposing he's in bella's an embezzler how is that relevant to whether or not he paid that money to ship aurora and the response when that was done during  essentially what the judge essentially left open for them show me how it's relevant they never made an offer prove they never put anything on in their case in chief in essence it was a fishing expedition and it was an attempt to dirty up pal so that they would think he's got too much money anyway you shouldn't conviction a row and notice that sharon was acquitted of those counts which indicates that that argument had some force with the jury finally the other issue that was raised i believe it was on the admission michael had more time that four more minutes and left the question on the admission by a party opponent three responses that are it's not in our brief but i went back and i read the transcript again this weekend and that admission that we're fighting over it didn't make it into the record it came in during the cross he said yes he said and that wasn't your statement wasn't that was mr zucker statement the prosecutor statement who said that yes and you simply agreed with him yes  the the so the admission actually came in but even if mission had not come and they were not inconsistent with each other what was said about mr americal that he had no criminal intent mr  testified to in the case in chief against shivaraj he said in my mind there was nothing illegal about it because i give cy split fees all the time i give finders fees all the time i didn't think there was anything wrong with it but the the fact of the matter is that payment of the money was part of a larger conspiracy because the money shiver of the directive that it go through power all the owner power received a ten ninety nine power pay the taxes on it then powell paid the money over sharon cunningham why did he do it he said i did it because i wanted to without pay and i would not have gotten juveniles to in my facility so that payment of that money as to center he wrote letters to the bank saying that we will if you give the loan we will send our kids to there and then of course they went and were screaming at people to keep that place filled up so  the issue was fully dressed and the admission was not inconsistent with conahan sentence seventeen years on a pl her question on statute of limitations on health seven that was preserved was it not that the objection based on statute of limitations with respect to count seven it superseding indictment was returned on september twenty ninth two thousand and ten count seven occurred in april of two thousand and four now you have to have for count the count has to be within five years of the statute  anticipated that he that the plea agreement would be approved and he would be convicted based on his deal the plea and if that happens then he if it were vacated ultimately even though he had pled then that would be roll a could have said ok i'm staying with the agreement let's go forward with it with that portion excise instead he withdrew vacated it and according to that agreement you withdraw it and vacated it vacate it then we get to bring up the defenses well it assuming we don't agree with that argument with that count have to be yes we asked the court however to uphold the conviction and two your honor in light of the additional six minutes you gave me i just have a very brief comments i actually received with regards to mr z broad's argument that the waters were released to the correct time quite frankly those letters should have been released shortly after the entry into that place and we should have known adult point in time what the judge's responses were so we could have a formulate an appropriate refusal motion we never had that opportunity and in fact two weeks before sentencing when the judge initially brought up about these letters one thing he did not disclose in that meeting was that he had written any responses to those letters and the letters in the release of those letters came about through media requests that's how we found out that he was writing to people this is a result of a media request not by anything that he said it's tough to to say whether that's damning or not i mean you forget things i write the city that i write that i mean it i don't know it's just it's tough to say that he was withholding purposely in judge quite frankly the time i've known judge because it for a long time is really hard for me to say that to prominent like to make your honor deals with the cross examination of both owens and powell on the embezzled one issue that went to palace credibility in a matter how weak the government thinks that argument may have been the jury had a right to consider that in assessing the credibility of robert powell they were not afforded that opportunity because you brought says that there was nothing in our case in chief to indicate what we want to go with this much money robert powell was embezzling we're talking around three million dollars you're not talking a couple dollars here we were not allowed to do that so all that is a record we made that proffer we were not we did not proceed further because of the