honor we're here today mr woods is here today bringing five issues that he believes have merit with regard to either a outright dismissal or a reversal of this for trial all of these issues i have for these issues outlined in order to lead up to the final issue which is the district or air of the night woods motion to disqualify i think all of agent in the case from the very beginning and when i say that he was leading asia in the case he was a lead agent not only with the f b i but also with i r s but he was working in combination with the u s attorney's office this is not a typical case that was handled by the f b i or handled by a law or some agency and that ultimately handed over to the u s prosecuting attorney's office the u s prosecuting attorney's office was involved in the investigation with sorrow from the very beginning he conducted all the interviews he conducted all of that are there all the three o two that run the case he issued all the subpoenas there was another agent agent months who was later replaced absolutely no case so everything depends on michael neal mike and there was going to testify but what about the dock the documentary evidence are you saying that without my good deals explanations regarding what those senator doing his job from beginning to act from the beginning a to z to make sure that constituent if it were someone who was looking for some money other than these give funds that were available and there was checks and balances along the way in order to get that money back so going back to your question what you have is you have my client saying the money that he received from mr shelton was a loan ok that was our theory of the case so all  in another itself it is significant but how does that impact the credibility of my can the l or r whether the jury would believe what might be in the same force for some reason again great questions there are might get neal's attorney was in constant contact with through text messaging regarding the recordings regarding what was going on in the case so now in the middle is the linchpin he's put all this together now you have a bad agent who's basically having him or her who's basically recording tape recorder recording my client why is represented by counsel these tapes or are we giving throughout when they went to meetings together the u s attorney's office was there that's how close this man was to the investigation so we go back to the documentary evidence well yeah sure the statement the government statement of the case if you look at it it outlines all the things that mr woods was computer was convicted of but all of those convictions were based soley on the testimony of mike and the young because all the other documentary evidence just showed what it is that we were trying to show ok he had a friend he got that job a friend a long life and then that job when that friend received the money he asked for along there was no secret about the fact that there was some money let's just put that one aside for purposes of this question yes what is the appropriate remedy well outside of the motion a great weight putting aside the understanding that that's your st choice let me add as a trial matter  or let me just say this it's hard for me as a trauma as a trial attorney to ignore the law i think young what applies and i think what youngblood it requires a dismissal but if you're asking me to come up with something outside of that you know obviously one of the st things is is presenting this evidence at trial given the defense the opportunity to show what was happening with these what was going on with the relationship with mr neal and also with the i agent talk about that that the f b i agent lied to his his superiors lied to the u s attorney's office and then put on the seven s and then let the jury made a determination because remember you have to believe associated with robert's sorry all throughout this whole entire thing i'm rather sorry i was willing to go in there and lie and disregard his oath in every single org are he's the person who is in constant contact with this confidential source through his attorney so that in another self gives huge ammunition and we had evidence that mr neil was being somewhat coerced during his interrogation and there were some questions that were asked that put his credibility in question threats or the idea of threats or the potential consequences i see this every day as a defen attorney in the district court did give you the opportunity didn't it to raise this possibility of interviews in this evidence if that trial mike and yell testified in such a way that indicated that whatever may or may not have been on the laptop was relevant was nothing in the must have been nothing that changed in neal's testimony in exact trial at trial if you look at the trough testimony he was so limited as to what it is that he c we were going to be able to accomplish in getting in some of these tape recordings and some of those concerns are i'm not reply i agree i mean this was i mean i don't think we had a thought we were and where i don't think we're trying to get in the or at the exculpatory tape recording but it was the avenue that we did not have able to us in order to get there we had to be limited to the direct the government knew that there are so witnesses might in the uk they knew what they were doing but in my in the st day of the nineteen day trial what did you tapes to come in the tapes were know that the judge brooks was very candid he said well you know there may be a way that you can get some information in here and you may be able to work your way into those tapes and be able to get those answers but in light of the rulings that judge brooks was making up until that point the limitations that he put on what it is that we can do with rubber sario and those orders were quite clear  then tie that into the list of the rules of evidence as far as how you get that information and we didn't feel in good conscience in good faith that we could make those arguments in order to get that information and it was considered going back to the very st question that judge kelly asked i'm not sure i understand your answer the question as i understand it is what is  associating with a liar that calls into question his credibility based so beyond the fact of the association with with syria well i think you know i was trying to get you know to pinpoint with judge kelly the connection that i think that directly went to mr neal but there are a lot of what we agree that they were close we agreed that they were intimately involved in this investigation together we had and everybody agrees over and over again information that was inconsistent we were getting discovery and noticing there was references to tape record tape recordings that we didn't have i mean this was these weren't just we were on a fishing expedition we were lining out in these motions why it is that we think that there's more out there and then at night houses ario who says hey look that laptop the only thing only case i worked at that i had to a job was he said that the government said that the only thing that had to do with so we start asking for these recordings and asking for any information about john woods on this on this laptop that's the only thing that was required to go down or get the laptop take anything off there that's relative john woods and then return and he didn't do that he knew what we were asking for he knew exactly what we wanted he knew that it was limited we weren't asking for a an overall  mirror image of his hard drive we were asking for specific information that related to this case and he destroyed it and then he destroyed it again to ensure that the f b i was unable to figure out where it is that he wiped it the st time it was subject to testing and would have been able to figure out the matter data we have been able to figure out whether there were some communications or some audio recordings that went to this office or not through the dropbox but by other ways because the records very clear that there was more hoardings that we ended up getting our hands on where they go so that's the reason why going back to what it is i says this yellow light on the outline of my time yes it is saw i have three minutes but i want to gather as a teen involving millions of documents involving hundreds of witnesses involving thousands of exhibits we had this thing paired out how it is that we were going to do our theory of the case was this never happened it was a loan to john woods no one ever knew anything about anything else and that was our theory of the case there was nothing inconsistent about that and then five days prior to that paris makes paris who by the way does not testify he ends up not testifying but ends up in an agreement to where he is indicated as being a witness in this case we asked for a brief continuance it was denied the case law makes it clear may not be in this district because i don't think we've ever had an in case says should have been granted and a brief continuance and or a deal with those types of issues they were larger than the ones that were offered up and in the cases that were provided and we had more to deal with in our case and i think the record speaks of that and then with regard to what's motion to disqualify just lie back and tell a jury they don't have to ignore their comm coming into a jury box and aware make decisions read the orders read the hearing has listened to the hearings listen to how we were treated listen the how we were treating our motions we were brought those issues in at and it was a theme throughout it was of theme do the very beginning that we were not being treated fairly it doesn't take me are reviewing what it is that he set or or wide he said there whether this you can feel it your of loss clerks who read the file are going to be able to feel it there was something different about how it is that we were being treated the math work long and i think he should disqualify themselves for a number of reasons  shelton has never denied giving money to john boy the question was was it a lie or was it a bribe and my feeling all is the only one that said i met mr shelton behind the cafe and he paid me x thousands of dollars and it was a bribe court legislation he did this on behalf of john boyd that's the only evidence related to i believe justice hely was asking about the credibility of my kidney on based on his contact with special agent sorry or that the answer to that question goes back to what i just mr shelton no he was never asked that question you as to what could potentially be on this laptop yet and so i guess what why why why do we think that there are some recordings with mr shelton because my give me on testified that he went around and he reported all came through mr neil's lawyers office right so so those came through the dropbox crack so your theory would have to be that agent guy it's recordings directly from mr neil that did not go through his lawyers office no your honor not at all that is not our theory the theory that here's the thing about the drop  testify about the recordings of trial cracked that is right but in the pretrial hearing did he not testify yes he did and no one asked him whether there were any other recordings he wanted he said he doesn't remember who it was that he recorded been at some point in time plugged into her computer now and corrigan could not say what happened with that at all she could tell us was that yes both came reporters had to have been plugged into her computer going to have to turn over his laptop he this was on november the th he told the government that night that his laptop had been and why because of ran i think it was just a connection issue but it her laptop would die start and so they took it to a computer repair place and instead of repairing yet basically they got a new one and  the process the computer store was able to do it in it everything that had been on the crashed the laptop all the active files it did not get what was in the allocated space and that the issue that we're having here we will never get back to patients it unfortunately it's impossible way to get back to patient we think dismissal is the only appropriate remedy here there is no other appropriate remedy because the cases that were cited by the government and by the judge generally had to do with th amendment violations  fightings of fact and so really it's under youngblood what is the riveting the courts are and found that there was potentially useful evidence for the defense on that laptop so you're asking for a person a rule as to exactly what are we would we be the st ones to do that you would be and what what's the best support for doing that for a person as a rule because  in this situation is desperate and if you don't do a person a role the problem because you basically take all the heat out of young blood and fisher and those kinds of cases what is the point of requiring bad faith when there are is potentially useful at it if the remedy is not  you have those three standards they are you have the fact that there was bad faith that they were there comparable evidence you know and that it was destroyed or what materiality see that i am read and out of time thank you for your i can thank after a three day event here here and here in the earlier a dozen or so witnesses receiving reviewing numerous exhibits the court found that the laptop wipe here did not destroy any evidence material to the charges or the situation when that who knows what's on that the only person presumably who knows is the agent himself and yet in this situation it's in the burden of the defendant to show some kind of prejudice well how is by i think the case was clear when we talk about the violations of the criminal defendants constitutional rights the defense carries the burden and they have to show prejudice among other things in this case where we see bad faith where there is a say the d n a has been has been destroyed and so the debt and it doesn't have an opportunity to test it well it's been tested three times you need to show that that your ability to retest it would give a different result for example but here it's just and don't think this is a pun it's a blank slate we just don't know what they are and i just i'm just i'm struggling with that a little bit and i'm placing that burden on the defendant and this kind of situation you're i think the point that you raise actually is very central to this appeal in so far as really whoever bears the burden here it's important to remember the context of this laptop this laptop was not there was no relevance attached to this laptop there were no allegations or accusations concerning what evidence may be on the laptop until there was this discovery dispute involving the additional recordings made by mike and neil and so unlike as your are pointed out the cases where we ma and fortunately they are very few but the cases where we may see a finding of bad faith destruction of evidence those are cases in which we're often seen potentially useful evidence that's like a videotape that may be depicting the criminal activity itself it's dark comics offenses in which the drugs are destroyed it's sexual assaults where the bodily fluids may have been disposed of here the laptop itself there is no evidence before the hearing or  hearing we're actually hearing that this laptop contained anything but these records and it's for that reason it was the government not the court not the fence it was the government who asked the agent to turn it over to an f b i forensic to analyze because we simply wanted to get to the bottom of the issue the issue being why did we have the recordings how were they obtained through dropbox that's the relevance of the of the laptop in the aisle for purposes of this and you didn't want to i think by that i'm guessing and don't now and then that the the recordings don't come in but i'm not sure that those were those weren't anything that your of cases including united states v blue arguably rotters if if judge brooks decided within his judgement discretion not to have any sanction in this case arguably or others that itself would not have been an error there was no prejudice in this case the court made very clear and definitive finding to that point knight i'd like to circle back to that a little bit later but to to finish my point here your honor so there was no prejudice there was no harm if the court didn't sanction or issue any decided agency sorry cannot testify in the government's case in chief and the and those recordings whatever their or their value to the government those are gone those cannot be presented now that did not hamstring the defense the defense was untitled to to be able to put to introduce those recordings if they were otherwise admissible or if they deemed then exculpatory or otherwise important that was the court and preclude that it only precluded the government can i follow up on that point for a moment and i quite frankly don't understand how this all developed the defense says that you put up so many hurdles that they would not have been otherwise admissible  and and in part because you wouldn't last so sorry all testifying got a motion in limine and from the court did you did you say you would object at every state stage of the way to introduc don't i don't i guess i don't are the what the defense means when they when they say that we were throwing up the hurdles i would presume and without perhaps being familiar with the entire record that may relate to that specific point i presume the government would deny that he did something but of course defendants denying that they committed crimes is routinely not that is not something that is admitted at trial but of mike and neil had said something on the tapes that was obviously the good the defense not being able to present any evidence regarding the laptop wipe and all that's not that wasn't part of anything to do with the remedy or the sanction regarding the the underlying laptop issue that was a motion  in part the government's motion in limine eight of the the court wrote the defendants are free to cross examine mr newdow about the record and see made they are free to ask him about his interactions with agents of sario they are free to ask him who gave he gave his recordings to way he did so they were free to ask him about his motives for testifying and the court went on as i think mr bennett heard knowledge and perhaps mr neil's responses to those questions will lay some presently unforeseeable foundation to connect his testimony with asian ceasars the solution to wipe the laptop in the court therefore left open the possibility if there was adequate foundation that they could revisit that issue which they did not w familiar with the record showing any inconsistency per se from my goodness testimony but again to the extent there was a defense certainly could have had to ask the court to be able to present that for as a pietschmann and i think the court order allows for that or at least allows for the possibility of that but that was not an issue that was litigated girls and as i said moments ago that the court found based on its back findings that there was no prejudice in this case and therefore denied dismissal of the indictment but of course did post sentient nonetheless and the and the no prejudiced fighting was is all predicated upon the fact that my kidney i turned the recordings over to the his lawyers secretary who purportedly that had all the original still at her five at her computer right yes sure i think that's it in part i thought that was an i would think that was the whole  question about this or that those are all factual questions those are all issues that were raised during a three day after that hearing with forensic analyst and other st hand witnesses to testify the court that heard all of that or it was certainly  able and willing to hear all of that and the court made its factual determinations which of course those determinations are entitled to deference by this court so the defense received the records as far as when i saw it and let me just follow one other definitively that he found that there the laptop quite destroyed no material information material to the case that wasn't already the defendant's possession i e the recordings and i think in the court reaching that conclusion  i think several things were at play one again was the the notion of what was this laptop what was its relevance to the case i know aren't covered that judge brooks also found just as he did find agents a stereo not credible on virtually everything he notes in his opinion he makes the observation and this is a factual finding which again we would argue is entitled to deference he says that while each of sorrow it was reasonable enough to to not destroy the laptop simply for medical records and that of courses where he's found not credible he all the court does know that he was also reasonable enough not to destroy the laptop simply to get to destroy evidence damaging to the case  judge brooks following this hearing was convinced as as articulated in this opinion that there was no material or a scope for tory evidence on that laptop and was and believe that sorry did not wipe it for that purpose has been able to truly point articulate what that would be the court found that it would have expected a just a sorry to have done it with a much more furtive matter to carry out that to carry out that objective where as opposed to per se if that that certainly prejudice is required to even even of reach for the for that rarity as far as as far as you know as we argued as far as there was any harm that evidence is wiped out that that piece is wiped out because that is at the expense of the public's interests and seem criminal activity prosecuted what have you you filed a motion in limine a crack to keep out any evidence of what to the jury  what happened here yesterday and the district court and granted that well why would that i think the argument in responses is well it's not so complicated it wouldn't be a mini trial just through and presided over the free day or the energy or hearing in which witness after witness record after record and often very complicated records such as forensic analysis method that dropbox activity logs were ushered in front of the court record certainly makes clear just how complicated and nuanced this was the court is the means to be that the really what i think the defendants want in front of the jury is just the the pretty much bare bones facts not necessarily how it happened and the district court has made a no ruling on whether there was anything whether the defendant met their burden on if that was a material destroyed anything material in the avid and then seem very complicated just to say here's an agent he was asked to bring his laptop that had evidence on it and he wiped it once and then twice the court the district court so it was in the best position to weigh whether or not this would devolve into a mini trial and confuse the issues and  discovery issue involving a laptop that has no connection to the defense has no connection to their defense the recordings were the issue and the recordings were provided and those were not excluded at least for the fender to use so there was no relevan misconduct and that is not a proper basis on which the jury should make that decision when we're talking about the guilt or innocence of criminal defendants and that also is a distinction i believe that's mr woods in his briefing points to the cases where defendant the structure of evidence comes in this consciousness of guilt whereas we may as we argued in our briefing that's because that is the issue that is the focus of a criminal trial that is the government's misconduct is not what's being put on trial to the extent that government misconduct is relevant and it certainly is relevant to the overall proceedings to the integrity of the proceedings that is addressed as an excuse me as it was here in an evidentiary hearing outside the presence of the jur been with some of the evidence we are hearing it still was the district court was still correct that there was minimal probative value substantially outweighed by the potential prejudice to the case and the interests of justice  are if i may touch on briefly just a few points that were raised by defense during their argument the government would not would disagree with the the assertions and some of the characterizations by mr banker for example with agents it is true like the neil testified and he did present direct evidence regarding the bribery fraud scheme at play i would note here again he was he was susceptible to cross examination as and as i read from the court's for documents or with the documents what would your case of look like on the documents yes your honor thank you that's exactly where i want to go which is i believe that this record i don't have it at my fingertips by believe in one of its rulings that probably one of the post trial motions ruling the district court i think noted that the evidence in this case was overwhelming and the government stands by that assertion was it as to both defendants or just the decision was made that as defendant shelton it was critical to the issue of bribery and kickbacks your honor the evidence in the pen of mr neeld the case is largely circumstantial but as we know circumstantial evidence carries the same weight as direct that evidence involved records showing cash payments going from that mr woods was was procured from the state g i f funds that was going to actually see a cottage payments then in short top order going  to paradigm strategic consulting the business run by mr shelton and then beatty large cash withdrawals being pulled out all of this tech contemporaneously essentially or within close time period we then see that on a number of a strong circumstantial case of bribery and fraud d not unlike the kinds of cases that the government the government see where perhaps we don't have a cooperator or direct evidence i would also go to that point that again mr sharon and his company were d a step simply getting these payments for consulting services we would submit to you the evidence at trial showed that that mr shelton and his company were neither qualified to be earning that the types the amounts of money he was receiving and in fact wasn't doing very much to earn that money now that again of course a factual issues that was those were presented to the jury and of course the jury convicted so the government or the government would assert that the evidence at trial was overwhelming to bo because we're talking about the laptop and the recordings the court found that it was able to get to the bottom of the issue here which was when the government learned of the recordings when they did have possession of them and were there any additional secret recordings that mr provided the recordings to mr wilkinson's office namely shit kerry late in the paralegal it the court will go out on the testimony of miss leighton the court rely on the testimony of mr wilkinson and then of course there are those the forensic more incriminating or exculpatory evidence out there that somehow it wasn't obtained no there's nothing there is nothing more then and then this sort of speculation and unfortunately we're in a position because we ha lot laptop that was white it invites us to project onto it everything and anything that could be on that laptop but there is no basis in the record or otherwise that suggests that there was anything on that laptop relevant t zone just touched very briefly unless you're others have any further questions on this or any of the other issues i will just note for the motion for to disqualify the q so issue mr bank invited the court to look at the record to look at the transcript  and that we agree the government would read the word recommend the court look at the record look at the transcripts the government respectfully submit that the court was patient under what times were challenging circumstances and we would submit that there is dish reporter about continuances perhaps few if anything is more fully centered within their discretion and here given that given the length of time from type of indicted given the number of continuances and given again that there i'll ask a question we've all been speculating about what happened