bar was the victim of trial by ambush by repeated efforts to discover the factual basis of the government's case stanford heard for the first time at trial about incriminating meetings and conversations that never occurred he could not impeach this false testimony because he was caught by surprise this is the issue the brady nappily issue that i would like to focus on today although i'd be happy to answer trial stanford asked for a bill of particulars bring brady in jake's material and reports of witness interviews he adopted a co defendant's motion asking for the government to identify brady material in the seventy thousand pages of unsearchable to scott the result was a generic order that the government turned over jenks and brady material within the time allowed by the scheduling order that did not work stanford never got the witness interview reports the prosecutor you avoided turning them over under janks because it didn't submit they didn't submit the reports to the witness to be read in approved and they interpreted brady to reach direct contradiction only we know this because of the interchange at the hearing in the motion of the bill of particulars two thousand and thirteen quoted in the government's brief pages seven seventy seven to seventy eight the prosecutor said what was critical to his case was stand for training the employees at the december seventh meeting and he would turn over had turned over would turn over anything where the employees at stanford had not trained them well of course we also know the brady extends to documents in which the employees dame other people is training them but don't l there was no showing that it was suppressed it was in this distinction between gagliano and directive pietschmann right the district court said i don't see that you shown me that brady exists was extent right correct and the reason that was wrong incorrect was because there were sufficient reus in consistencies in the government's theory of the case syria and in the testimony that it presented changed over time as of two thousand thirteen the theory of the case was you trained employees on how to evade law enforcement at this december seventh meeting at trial the theory of the case was you you protected everybody you made everybody feel protected by saying you had a attorney general ledger and that's what enabled them to continue selling these drugs and when you have a big change in the theory of the case obviously the information that you have is the government changes their original theory expressed in two thousand and thirteen was after brady and espinosa had pled guilty and been debriefed after that hearing then  when you're prepping your witnesses before well the thing that's still it's going to torie if it does they didn't tell him before if you had multiple interviews and you first learned of it the night before trial that the defense is entitle government found this incriminated enough to play the whole thing forty minutes before the jury stanford was not in on the telephone conversation but francis testified that he said that he spoke with him by phone discussed afterwards in fact the telephone records showed that there were no telephone calls between francis and stanford in til november eighth now you don't wait seven wants to discuss a telephone conference that it that it happened with or without arguing impute inconsistency is based on telephone and bank records as your client had so then you're in a situation of saying well we had them or they gave it to us but they gave it to us in perth first most of napa and brady law except in extreme circumstances doesn't find reversible error when the defendant actually possessed the material they're saying w suppressed and not given to them well my understanding especially of napal law is that the government has the obligation to correct false testimony in less the defen consciously decided not to use it and that sand filippo cited in our reply brief and there's a case called us fee may seem to ninety three sides boreham where the government elicits a question did you have any promises and they say the witnesses no and everyone actually knew there was a non prosecution agreement can you think of any case we've ever written where the defendant had the material they're saying proved  right that's saying well let's get back to the janks issue we don't they didn't give you any reports of interviews not none i think there were initial interviews of employees who didn't testify in the stores and you didn't have none of there were and you got one summer a jury you didn't get any grand jury testimony no no we had nothing it was a complete surprise it gets to trial and they tell these stories about meetings that never and conversations that never existed government does point out that a i know your client was pro se a trial but almost all of jenks case law says you have to then say to the court please look at it in camera i don't think they're right that it's not verbatim or that he didn't improve it but there was doesn't seem to be any contemporaries requested this trial the sage judge look at this and you decide if it's disclosable well judge i don't think i don't know i don't think that the defendant has the obligation to ask the court to look at it because only the defendant is going to know if it's impeachment material or not right but our law is very clear a generalized request for prepare his defense and was an able to impeach the false testimony the false testimony that was presented against him i was looking at skilling the other night and they talked about just not outlining the brady material beforehand does not necessarily an error but they said you have to look at how did the government use the proportionately false testimony or the one they refused to turn over the witness interview reports to they misled stanford about the factual basis of the case by focusing on this training in december seventh when that was turned out to be just the tail end of what the case was about that's a pretty serious allegation and i'm making it judge i'm making a double team him at the bench each time throughout trial they demanded that he turn over impeachment material at the beginning of the day even though that was not within the scope of rule sixteen and the judge went along with that but this is a cumulative error of well i'm saying there was ba which which reinforces my brady argument my brady a nap who argument that yes stanford had the material had the material but the government went out of the way out of its way to prevent him from using it the friend if material but the government went out of its way to prevent him from unique us by not giving him the witness interview apart you can't sit there and what is your best case that has that sort of amalgam to prove brady reversal because that's a complicated interlacing argument i'm wondering if you have any similar i have not seen cases under bring the where the government usually the it comes up under janks that the government  beforehand and you're not required to do that but the court in this case went along with the government and it got the court really aggravated at stanford the government the prosecutors would refute at least challenge the authenticity of the defense exhibits which turned out to be perfectly authentic and would challenge that whether the defendant whether stanford or given to him when they had they went into they doubted the author of the hat they authenticity of the documents because his secretary had a prior fraud conviction and then they went into the facts of the fraud conviction just to prejudiced the judge against him and make it harder with your time  argument yes we would be applying it or we would be assessing for whether the instruction was harmless or not correct beyond a reasonable doubt ok and and even though the jury had th her finding and even the stanford was able to argue in closing that i didn't know this was a controlled substance you're saying because the jury wasn't required to find that special funny beyond a reasonable doubt it's be harmless like that first of all the form of the inquiry the court went out of its way to distinguish it from an inquiry about for an answer on a verdict you're entitled to a verdict on every element of the offense the court went out of its way to say this is separate apart this is different this is just to assist the court and then it didn't give the beyond a reasonable doubt instruction but we're going to argue that separate question focus more on this issue than if you just picked it  when it it's focuses the jury on it but it told the jury this is not part of your verdict and there was no need to do that it's not typically how those things are done but the government and asked for it to be done that way usually you just ask a question after the county the court to write your general instructions about the burden on the government the defense doesn't have to put on case and all the usual border play instructions correct as it went to the verdict but this was distinguished in the bullet also i think it's very important that they decide that the judge stopped standford from from questioning day and francis on when he realized it was a controlled substance analogues dan francis was the only one who would have told that to stanford and dan francis was going around like law i don't know what do you mean about that question because he did not believe at the time it was a controlled substance analog and he was not allowed to answer that question time understanding that with the way that was a revocation based on state law again you're conflating federal and state law you can infer bad intent from knowledge under state law because state law always broader than federal law in your your  mcfadden argument it's very clear in the brief you limit that count one but the map to brady arguments you think would affect all is everything that's correct fadden is just count one yes on money laundering the jury was told they could find whatever lawn it any kind it criminally derived from anything i think they're probably should have been an instruction that had to be unanimous on what it found so we don't really know but that was not preserved below so i didn't  represent the united states has the lead in this case and unless the court would prefer me to do otherwise i'll follow the order that defense counsel beginning with the brady nap and the first thing i would like to address is sort of the the broad notion that this was trial by ambush against mr stanford that mr stanford was was intentionally misled by the government as to what his role was in this particular conspiracy and i think the best evidence of that the thing i would suggest that you look at is the government's opening statement from the first trial this case was started twice and finished once the first trial was in april some four plus months before the the trial that ultimately resulted in the conviction and that of course was a mistrial when the codefendant died look at the government's opening statement from that first trial and you will see that there is no practical difference in the in the government's theory of the case in terms of what mr stanford's involvement in this conspiracy was the nature of the you know the sort of the nature of his involvement and that's a very detailed opening statement and again this is four months before the trial that ultimately resulted in his conviction so even assuming he had been misled up to that point he's got four months and an opening statement to say what the government's going to elicit information about this meeting and that meeting  investigation and you end up getting multiple defendants to flip on their lawyer and testify so is that the government's position did you not there was not a single report of an interview with a single codefendant that was turned over just i don't think the record reflects when you ask counsel a question i don't think the record reflects whether there were any interview reports turned over what the record reflects was asking you as an officer of the court do i now from an ever give a single report of an or if they were interviewed no reports of interview were taken or if they were interviewed and reports were taken the agent never testified and nothing in the report yes that's it it's that it's that you have reports so therefore you're well the government looked at them and concluded nothing verbatim was mention i thought well first let me say this or that that these coconspirators came on to the case later so it's not like you know that  spirator which isn't interviewed i take it they weren't put in the grand jury so is your testimony is your position also that the government agents that took those interviews didn't go into the gran the it's my testimony that it's my it's my position that those interviews statements the ones that were made were not janks or brady and if they're not trial and they didn't go into the ground there was a there was a state task force agent who worked on the task force he testified at trial on a very sort of very narrow so if he would have had any janks material that was you know related to the subject of his testimony then that would have been turned out over and again i don't think the argument here is a is a chance violation i don't think that's what we're talking about here some of the brady n to sit on that that's his that's his expression and government counsel says oh no we're going to turn that over me we're going to turn that over right away that's just exculpatory what i get i've never seen not handing over reports of interviews of a cooperating defendant so you understand it's not just exculpatory if that end if you report day one said oh i was involved but not that much and then later on when he's getting ready for trial i was involved a little more that's impeachment evidence of that  case law is that mere speculation is not enough and as you pointed out the district court in this particular case made a finding that they just dance had not proved that there was favorable material that had been suppressed you know it's clea under fist circuit lot of think this is what defense counsel was referring to the martino case which is a case that's got some age on it that the government has no oblon ation to create janse material so the the agents could have interviewed these people a hundred times and they were not under an obligation to create reports of those particular interviews sometimes they do sometimes they don't as judge davis points out many times these people are interviewed days before trial these defendants live some distance away from la investigating a case anymore this is this is trial prep and so you know i think what the district court relied on was that there was nothing but speculation that there was ever any or all of these and consistencies that the defendant suspected were out there that there were actually any inconsistency one witness was asked i think on on cross examination how many times were you interviewed by by the government and you know just a story change over time and he said no he said that several witnesses said when i was being interviewed people were writing down notes i think there were two witnesses who said that someone took notes but that's that's not going to be verbatim and as you pointed out he could have asked for in camera review if he witness and that's my argument judge on the opening statement i think the the best evidence in the record of the of the government's theory not changing is the opening statement from the first trial and if you if you read it it is it is a long opening statement i think it's somewhere between thirty five and forty pages of record and it's very detailed and it talks about this meeting and then they had that meeting and then francis have the meeting where he told them about all of this and they talked about the a g letter is very clear from that first opening statement that the government's theory on stanford's participation in the conspiracy was that he that he was valuable because he's the one who had the in with the state attorney general and you know he had the latter which then later became a handshake agreement and so he is the one who had the in and that was his value to the to the conspiracy and that is very clear from the opening statement in the first trial so i would suggest to you there's you theory as long as you've given over discovery correct correct i think that's right and it would have been a problem but you know you would have to have something out there that would say some report of interviewers or notes or something where some witness  the witness to change his story over time but the record reflects or rather there's nothing in the record suggesting that that existed and stanford never tried to test that by asking the district court to look  this is you know the record in this case is merely testified your position is that the interview reports that related to that testimony were given to the extent that there was something that was relevant i don't think there's been a suggestion otherwise again there's not an argument in this case about a j violation counsel just said that so you know to my knowledge the record doesn't suggest otherwise and i don't think there's been an accusation that he would have testified at a motion to suppress and something relevant to that would not have been turned out or  the government witness gets on the stand says something that you know is untrue but they have the information that could impeach that statement it's still the government's obligation to iraq i think that's correct if we know something is wrong but but there but there  this case the defendant defense attorney were one in the same make strategic decisions so for example and you know i'll go ahead make this point now when i wanted to make later he did have this information he had the bank records this with the back records with the government's exhibits that were offered in connection with the money laundering count he had the bank records presumably he had his own telephone records we didn't offer the host but he presumably had access to his own telephone records and i'll get to in a minute whether he was prevented from using the records of his law practice because that's a small evidentiary point but he had these and he didn't even try so it's not like you know i'm going to try with this particular bank record didn't even try and  recognizes this sometimes that happens for strategic reasons let's say for example that mr stanford had pulled out a bankrupt heard trying to show that mr barrow actually wasn't in last he added any given day well here mr barrow look at look at this bank record you know what's barrack the number one rule of cross examination is never ask a question you don't know the answer to barrow could have said i have i put that on a credit card i paid cash for it so what o'keefe recognizes is  sometimes you know you have to allow the defense attorney to make strategic decisions about what he's going to do with potential impeachment material and again never tried to impeach with the telephone records never tried to impeach with the bank records i would suggest that the bank records really don't tell us where people were and weren't there what the record reflects in this case is that these defendants had numerous counts i mean the coconspirators had numerous bank accounts  and what mr and mr stanford really focusing on is about one set the wells fargo accounts but they ended up you know the money launderers a exhibit through sixty nine a sort of a compilation of all these bank accounts i think pinnacle had four alpha which is th as this company had to run multiple bank accounts not to mention cash credit cards so i'm not sure the bank accounts really are our scope or took excuse me in the sense that they say well this witness was office and lying because this is not in a bank record stanford's talking about our records from his own law practice and the government had very serious authenticity concerns about documents that came out of mr stanford law practice the discussion about the custodian of mean defense counsel is trying to make the argument that he was precluded from using these particular records the objection was to foundation under nine the judge specifically said look at seventeen five eighty two are  day of testimony he was still talking about calling his records but he never did it and that's why those documents didn't come it looks to me like you know maybe because but count one has real infirmity is your position controlled substance analogue two ways and the first is by showing the defendant knew it was a controlled substance analog the jury in iraq which the judge specifically utilized because it was concerned about the circuit split the mcfadden certain grant hadn't answers yes the judge tells the jury you have to be unanimous on this just like you have to on everything else and it's just davis points out it's at the end which arguably draws perhaps more attention to it plus the court says this is intended as an aid to the court you know what jury is not going to seriously take a question that the court says this will be an aid to the court yes and that is the problem the problem with the is it's silent on the on the standard to prove our argument is that the only standard of proof anywhere in the instructions is beyond a reasonable doubt i cited brown from the ninth circuit which is a case in  which the beyond a reasonable doubt was omitted in a portion of the instruction but it was covered seven other times in our case beyond a reasonable doubt appears twelve times in the to unrelated yes yes it is perhaps except that there's no other standard of prevailed and that was the problem which is the first circuit case i cited by means of comparison in goren th there was an issue on which the court should have instructed on the preponderance standard it didn't and the only standard of proof was beyond a reasonable doubt and the courts as we know they could got confused because they wouldn't know because the only standard is stanford's defense is not what i would call the franchisees defense the franchisees defense is i entered into an agreement with these people to sell this stuff but i didn't know it was controlled stanford's argument is i never entered into any sort of agreement i was on the periphery because i was a lawyer hired to do a job i either didn't attend these meetings if i was there i got there late and left early nobody ever told me anything i never saw any lab reports and there's no such thing as an a turly yes yes absolutely i think if there's a problem it affects only count one it doesn't affect the misbranding conspiracy and it doesn't affect anything to do with money laundering in light of p but the opening statement at the first trial put the timing of the attorney general letter in late october and november now again that's very different then at the first trial where it's at the actual trial the second trial where they said it in august we're barrow said he first came in in august and that makes a big difference in terms of whether building this business relied on by august they were selling six figures three hundred eighty thousand dollars every month and stay and barrow made the decision to invest in a warehouse in lafayette on september twenty ninth so finding out a talk about an a g m letter in late october or november does not alert him to what's going on in the first opening statement they said that the people in atlanta greene and malone knew that knew the  was protected by two attorneys but didn't know their name at trial greene testified to their name and now obviously something changed never got a report on that as to the other witnesses  clearly knew and understood everything about them how it stanford had made a strategic good to decision not to use the records that could help i mean the judge admonished him for ineffective cross examination it clearly was not in the aide to teach it decision the bank records don't just show oh he was not in lafayette on this day they show where he was on the on these days they're all like only a few exceptions in each month so that's very different in terms of the bank records straight this impeachment material they show he was somewhere else he wasn't in lafayette in cameron struction there was nothing personal or confidential in these reports and short of that i don't think stanford had the obligation to ask the judge to figure out if would be a piece rich or what are you going to have a judge after every would direct examination go through all these statements  is testimony people interview multiple times she's going to sit there at the bench after direct on each of these witnesses and see if there was anything he could use and plus it's really defense counsel who is best situated to figure out whether there is something he could use and finally oh she never called the record his record custodian because he didn't want the government i would think to bring out that she had a prior conviction i don't think he wanted to embarrass her and he was pretty overwhelmed at that point by what he considers her a false evidence on the make fat an issue the cases where with the court has had so far where there was an interaction tory about an omitted jury instruction that issue was not hotly contested for the most part to fork is an example  jury effectively made the finding when he found on the air on the elements that were not only needed for example do for it was medicaid it was health care fraud or it and aggravated them and he didn't the omitted element was was this a real person well to get a medicaid id you had to be a real person so the jury effectively found that this is the first case that i've seen where the issue was hotly contested and frankly the government the evidence was very very weak d e a s said they didn't know yet they hadn't decided yet francis said the science is not there those