this court we have identified a number of grounds on which mr scully's conviction should be vacate i'd like to use the time i have to focus on what i think is the most pivotal issue before us which is the advice of counsel issue this appeal is about a defendant's constitutional right to testify fully in his own defense at trial that right was denied to mr scully when the district court refused to allow him to testify as to advice scully had a constitutional right to testify in his own defense whether he called anybody he was not required to call anybody and the good fight and the testimony that he was prepared to give he was fully comp the record you know regards to hear evidence documentarian evidence about his communications with mr tomato well the documentary the documents are before us but they are not very promising for the defense a lot of that material is after the fact it's advocacy it's what mr tomato was planning to say to the government not what mr to mayo had said in advance to scully by way of legal advice right you're correct your honor and there was you know based on the court's ruling we had we did not have the ability to put forward any of the evidence into the record well wait wait wait wait no you did you did you had the opportunity you or your presence of counsel who was representing him at the time had the ability to make an offer of proof to the district court to explain what mr scully was going to say and what documents he would have introduced the trouble i had and it's relevant to your case i don't know that it's controlling is something that i had trouble with there was an answer which was a very broad general mr to ma scully in return when and how that happened what all the circumstances were now you could say this for judge cut it off at the pass but there is there anything by way of overproof or anything else that explains in detail what planned to say i think that the closest that we could get to that your honour's we did have a a pretrial hearing in which the government had moved in limited way to preclude the advice of counsel defense in the course of proceeding you know granted largely by the way of proffer an argument from from the lawyers was the issue as to why the advice of counsel should be allowed to be presented to the jury understand so what so tell me what in that hearing was said about what mr scully told to mayo and what to may have told scully that would be more then a cumulative a to mayo bless to this which is the statement that he made that led to the government's objection as far as i can see and you know your honor you know you're correct i cannot point to sort of specific you know to a specific detail pro that certainly would have been beneficial but there was discussion about mr tomato was hired as and was made clear at the hearing and also you know a part of the trial that he was mr  assistant united states attorney he was also our client's personal attorney which i think is incredibly significant here in looking at you know arguments as to whether the information would have been cumulative or other well that all depends on what the information is which i'm still not hearing that is to say it seems to me it's a very different matter to say mr scully was prevented from testifying that he gave a full description of everything to do with his business to mr tomato and mr to mayo returned to him with some detailed analysis of that situation and said at the end of it that i think what you're doing is perfectly  legal there is a document that says mr to may i was retained with that in mind but then there is conspicuously not a written opinion or anything of the mr to may of that explains what his analysis was and what advice he gave based on what facts and maybe mr scully could have testified orally to all of that but i think it's a very different thing to say the judge excluded one sentence of i want to tell the jury that mr de maio said everything was great versus the judge excluded testimony that would have an advice of counsel defense well certainly your honor what mr scully was prepared to testify was to the length of the relationship that he had with mr to mail again it was not a sort of a a one time one contact vice eking and i believe at the pretrial hearing you know the idea the fact that mr to mayo participated in with mr gertler in putting together the legal analysis that was eventually you know one of the primary bases for mr scully to believe that the conduct he was doing but regards his business was lawful but the gertler analysis was before the court and there before the jury and there would have been was there testimony from gertler that to mayo had participated in rendering prejudice for from our side was while the jury heard that two mayo was present they never heard what to me you had to say but questions how can we find prejudice if we don't have an adequate proffer or are you saying we don't need to find it's so big even though we don't have a good proper we should reverse just the possibility that something prejudicial to the government would have come out well your honor i believe that this court can couldn't reverse without a proffer of the proof just based on the concept that mr scully was fully competent to give testimony as to his state of mind under the fifth and sixth amendments of the united states constitution he was fully competent to give that testimony that testimony was not  and he would have been fully competent certainly to testify to a conversation an oral conversation he had in the government would have been free to attack it on even without to mayo on the theory that what lawyer would give this kind of advice orally casually but that's another matter scully would have been fully competent to say here's what i told to mayo here's what to mayo told me but if what the judge excluded was simply a one sentence bottom line i knew this guy a long time and he said it was ok not only do we have a different analysis of the prejudice of the ruling seems to me we also have a different and i was and whether that testimony is indeed as the judge said a kind of a blow by that wouldn't actually establish anything but certainly your honor that is not what was its stake here this was not a one contact advice everything was for we know that well the problem here is that we were not able to get that in front of the court because every attempt to put in the document supporting documentation or testimony was which you made a motion with supported by affidavits and supported by a legal analysis to get the judge to change his mind in my poor room that always been the kind of thing that i expected to see a proper here's what is at stake here is the evidence that we're offering and that's why this evidence that we're planning to offer is relevant because you have an opportunity to do that and that argument we made in large part at the pretrial conference you know when we were defending our ability to put right that's what i asked you because i have enough familiar with that transcript to tell me what was said there that supplies the lack that came at the trial and i still haven't heard that there was any kind of actual proffer i'm not asking you for testimony from scully i'm asking you for all lawyers proffer what was the proffer  this case was that mr to mayo was a lawyer who brought specific f d a compliance expertise he worked with mr scully through the duration of his business mr scully brought all of his issues and problems to both mr  to mr to mail mr to mayo supported and you agreed that that conduct both with regards to how he was dealing with his company with regard to what he was representing to his client that to the clients was all lawful and it was and that was  know part of the key part of the defense here and that was put forward in argued vigorously you know pretrial the importance of mr to mayo's testimony or expected testimony and the fact that he also provided expertise know what would have been the testimony in this case would have been a you know multi year relationship where mr scully went to his attorneys at multiple occasions throughout the entirety of the business they told him and they told him that his business model was legal that it was there was lawful to import these products from europe where they were authentic drugs you could sell them here in there were authentic european packaging not withstanding your client was going to testify the tomato told him that he t mail we did not present specific e mails in the proffer at the pretrial hearing well wherever you present them is there in the record anything beyond the documents that i have seen that are in the appendix in this case pending in this case are docket and is the can you point me to any e mail that is not something that describes what mr to mayo argued to the f d a after the search warrant but describes in detail the kind  nine exhibit a why which was not admitted into evidence ok so that's something i should look at is a four thirty nine they wrecked but you see the difference between mr to mayo and bias are which is relevant to state of mind and mr tomatoes advocates saying to mr here's what i'm going to tell them that doesn't mean that's what he was actually telling mr scully but you're iran and i would direct i would direct you to eighty three seventy four point six also which is to ma draft opinion as to the law fullness of the business model which we've included in our papers again showing and going directly to your point your honor which is which is fair is that to me it was in li three seventy four point six as mr gertler requested i am sending you a proposed retainer agreement for me to provide you with a legal opinion i have drafted an agreement for me to provide an opinion regarding criminal decision not to allow mr scully to testify to his advice of counsel defense was improper the advice he had the testimony he was going to give was not hearsay it was classic state of mind evidence nor was it under the prejudicial to the government the fact that mr tomato was not called to testify had they wanted to they could have called them themselves and nor is it cumulative and i think it's interesting just to note that in the government's papers they back away from the unduly prejudiced argument which was made in court now to try to resurrect this decision by saying that it was unduly cumulative that argument is is is without legs as the attorneys in this case had different expertise they had different cloth the they had meetings with mr scully that the other ones were not a part by mr tomato testifying is counter logical if the government and the court felt that the information was cumulative have mr scully testify to this advice strange that somehow you would sure that you would have  calling another witness so again constitutionally this was evidence that he was entitled to testify to and he the courts struggle to find a rationale to support excluding it is unpersuasive also correct that the judge initially judge bakiev a lot of thought to this ruling as you can tell from his post decision and during the trial itself he initially viewed it as hearsay and he could judge he thought about him or he got some briefing and he changed his mind  you agree with him right that that is not hearsay that's correct your honor but it's still completely appropriate and in fact he was obligated to weigh that evidence in or for all three as i board was made clear so tell us why the there is something prejudicial to government about allowing a witness to testify about a conversation in which he participated that bears on his state of mind your honor you touched on it in your car and your questions to opposing counsel that the testimony that prompted the objection from the government was mr to mail told me my business what's completely legal that statement without a proffer without any offer of proof prior that it's a very difficult thing for the government to respond to it had look at pages eighty three ninety six to three ninety seven of the record which is an e mail from time to mayo presumably to mr scully with a draft statement of facts in the e mail so this is the statement of fact for the opinion later we're going to orally discuss this isn't there an inference of the proffer to be drawn from those documents that to mail was in fact prepared to give an opinion later blessing the transaction may have never happened but he's looking at the facts and he's saying this is the draft for the opinion letter the opinion letter wasn't going to say it's not ok yes we had bits and fragments of what today was likely to say but i just want the court to be aware this the timing of this document is important for one reason this was circulated after mr scully was approached by a client who a potential lucrative client who had concerns about the legality of his business he was already selling these drugs at the time one point for cross examination kelley is it diminishes the opinion but it least as to the continuation of an ongoing crime it might give the defendant some protection i don't think that the i think this court has been clear the advice of counsel defense does not apply when the criminal activity beginning we briefed that extensively in the motions in limine and your honor i don't know that that's in our second circuit brief but the law is clear it's both in this circuit and all of our sister circuits that if a defendant seeks out an advice  an attorney excuse me after they've already commenced the activity that's an issue if i have counsel defense doesn't apply in that situation you're supposed to honestly and in good faith seek out the advice prior to engaging in the act when you lost a motion in limine and the judge didn't say you can't have that the defendant couldn't explore this area because all the evidence was about lawyers who came in after the fact the judge allowed gertler to testify extensively what i'm trying to get at is what is prejudicial to the government about allowing scully to give his account of that conversation whatever it is and then to go after mr scalia if that on cross examination of what he has to say doesn't stack up to an advice of counsel defense and then call mr to mayo if they don't go after him as to what exactly he was told the same way i was there was done with their points around her and what i think was most troubling to judge pat was that it was prejudicial because it just wasn't presented in a fair reliable way these are touch tones of the court didn't like the idea of somebody testifying about what somebody else told them which here's a problem did not exist but it kind of carried over to his subsequent reasoning just was at the end of a six week trial and the context here isn't throughout the trial we had been advised mr to may was going to be called by the defendant to testify  his behalf he put on his first attorney and there were serious gaps exposed between scully's version of events and what mr gertler testified this was the context in which mr scully got up to say i'm not calling to that everything was totally kosher that part of the analysis troubled judge that i couldn't that be argued to the jury defendants often testified to things the government thinks are false right and the testimony is always by definition self serving and the government does that but that doesn't mean he can't say you know i didn't shoot this fellow and mr jones was standing there right there with me at the time and then not call mr jones the government can call jones or the government can cross examine the defendant having trouble understanding why there is some rule that you have to call the per party to the conversation before the defendant can give his version of what occurred because in this particular context and under judge bats for all three analysis he didn't view this testimony as probative and i did want to focus just in case i don't run out of time we're talking about e mails earlier and i think the first page of the government appendix there's an e mail here that's highly illustrative of what was really going on we focused on the bottom of the e mail which says that mr its in mr to mayo's view advised the f d a that most of what was being sold was legal so that's hugely problematic in and of itself great stuff for cross examination pre judge but the top part i do want to focus on if i may this is why this was not probative this is why testimony was cumulative and this is why judge that among other reasons decided to preclude it under four of three if i'm mistaken please advise me but the only product which i recall we discussed prior to the spring was botox this isn't two advised him on the plethora of drugs that he sold after botox so what probative value is that he went on his way selling all these different drugs and never spoke to mr mayo about them and then there's one other thing in this letter the only written advice you received came from sailor and girl or so they can say that mr to may was involved throughout and they can say that he was his personal attorney and he was intimately involved that's not the reality we never were able to get our hands on to males time records but to me it was a bit player compared to mr gertler the evidence at trial was mr gertler was day to day involved he provided written opinion letters he provided advice on a regular basis and mr to mayo why isn't this all stuff that should have gone to the jury you could have put that e mail for example if you didn't have the fortitude to call mr de mayo to the stand without having an interview with him which i assume he would not give you in advance you could have put in that e mail which says sort of what you just said it seems to suggest that mr de mayo didn't this is this is a bit of a c y a for mr to mayo isn't it and you never really told me everything the only written advice you got was from gertler and you could have put that into evidence you could also have pointed out if the other side had put in these documents that they're so proud of attached as a draft statement of facts for the opinion letter o attached in a detached if you read it isn't there maybe is that because the opinion letter may have said everything is hunky dory but what have laid out here is what you told me and on the basis of that i conclude that everything is hunky dory right all that could be argued to  the jury why is it somehow prejudicial in a sense that would preclude the testimony to say well it was all played out we would have won because this is all kind of bogus why don't you play it out a burden of production doesn't mean you have to convince the jurors a burden of production means you have to put in sufficient evidence to persuade the judge that this is a topic that needs to be instructed about and that can be litigated at the trial the burden of proof with respect to fraudulent intent remains with the government the hold on you're right i stand corrected they had the burden to put forward evidence on this defense so which they did the judge said and that's why gertler was allowed to testify  was a lot of the judge was consistent throughout he said if we're going to hear what attorney said i want that testimony be accompanied by declaring and i just it is and i remain to rule is there any legal authority that says it's a rule that if you're going to present an advice of coun defense you have to produce a lawyer to testify it's not enough for you to testify at least in circumstances where the lawyer is alive and kicking and available to us but i'm not aware of any such early on but i do want in my remaining time just to state that under four o three our dollar from two thousand and six this court said so long as the district court judge conscientiously balances the relevant factors here there can be no doubt whatsoever that judge back conscientiously balanced the factors here he gave  s amounts of thought to this ruling he wrote about it at length in his post route sixty six page post trial decision that gives exactly what his thinking was he was a trial judge he was sitting there for six weeks he heard all the evidence he gave us a lot of thought if it's conscientiously balance the standard before this court is that the ruling must be arbitrary or irrational i press upon you i don't think that this ruling was arbitrary or rational given the full given the full mosaic of facts the judge had before him at the time he made it a research back in two thousand and nine on this issue you know the idea that mr to mayo based on that casual e mail is is is is doing you see why i think is perceptive of the document i pointed out to the court spats analysis here that a defendant is so inherently untrustworthy that he cannot be allowed to testify to state of mind evidence without corroborating witness is unconstitutional that used to be what the common law said in the in the nineteenth century in the early twentieth century that defendants didn't have a right to testify at their own trial because they had such an interest in its outcome that way of thinking was over borne by constitutional analysis realizing that the fifth and sixth amendments united states constitution give a defendant a fundamental right to testify to this judge right that's where we see you know cases like ferguson versus georgia and rock versus arkansas saying it is the defendant's right to get up he's available to be cross examined the rule of incompetency was replaced by the rule of competency mr scully was defending his case he was charged with seventy five felony counts the government put up forty witnesses he got on his defense based on his advice of counsel his good faith advice of counsel something which everybody recognizes now he was absolutely entitled to put forward it was not hearsay george speight struggled with that and after that was pointed out he came up with the four of three argument but the government was never prejudiced they've offered no prejudice in their br offered him show no prejudice and they're all arguments the cumulative argument is and is able post hoc effort to salvage this but it's fundamental core here is a violation of the rights of a defendant to get up and testify and say competently what his advice of counsel evidence was he could have been cross examined he was cross examined for days as was reliance on his other lawyer as to you know in the in disha of reliability we had mr gertler testifying you know as to advice that was given to him and the fact that the lawyers believe that this was absolutely lawful to do again not offer because that's the truth but because that impacted mr scully's mind he was prevented from puttin incredibly important piece of his testimony from his personal lawyer who had if the experience was a former assistant u s attorney who the evidence would have shown just to be clear the proffer did not include the draft opinion that was admitted into it was emitted into evidence under the letterhead mister so this is showing this relates to the three ninety seven and the statement of facts and three ninety seven matches the opinion letter of correct correct so again and the idea that the government would be able to argue to the jury that mr gertler was incompetent to give this advice because he didn't have the relevant experience left aside the fact that everybody knew that there was  a experienced attorney who was providing advice to mr scully as well and he was prevented from the chance that forty witnesses we called to and the testimony that he was going to give was fully competent not hearsay not unduly prejudicial