hutchinson there is obviously feedback on your end you might have multiple microphones live we do my colleague and i are separating from one another right now appeal i'm so i'd like to briefly address to reality issue of new evidence in connection with that will thirty three motion before handing the floor to mr kimball to address the section twenty to fifty five issues what we have here from a thirty thousand foot view is new evidence not provided before trial it boils down to a wealth of underlying data data about other traders in the ice and c m e market evidence that the jury get not trial when i believe the jury did not know at trial is that cancellations are a much more common part of a trading practice than i think the evidence showed at a very significant portion i believe upwards of ninety percent one individual noted are cancelled and in fact when we get the data that shows what percentage of large orders are chancel fire their traders we see that many more large orders are also cancelled by those same traders so it seems to be a part of their strategies as well but that doesn't mean that in fact an individual intended to cancel those orders at the point in time when they were made it simply is the fact that the vast majority of them are focus on the large orders that were cancelled after it was all crazy well the done it to be honest your honor is quite questionable you know at this point we still don't actually have the underlying ice data to be able to verify that it wasn't ninety six percent it's ninety one percent as i say agreed after trial we can't verify that even that is accurate and in fact it seems suspicious that we have this narrow pool of data that's kind of forming the corpus of that conclusion because that conclusion wasn't based on the full brought the prices data rather it was merely a small subset of transactions that popped up within an ice trading tool identify what they believed were suspicious and so your honor you know to me the materiality of this evidence is that it goes not only to the fact that we have known errors in these charts this evidence also would have allowed mr casea to buttress own his own conclusions when we boil down this data that he didn't have before trial we see that he actually fills a greater percentage of large orders on many of these markets than any other trader so while he may make and cancel more trades he's also filling more trades that's an important piece of context that the jury didn't receive  but again mr casea was unable to do this type of analysis because he didn't have the underlying data all he got were these summary conclusions and statistics he had his own trading data but you can't make a comparison with just drug data  and so in many ways this is similar to situations like united states versus hernandez rodriguez where of the district court looked very narrowly at the question of whether the facts in that case you know was actually relevant to this case but in actuality if they looked at the full breadth of what was coming in with the new affidavit they would have realized that it buttressed many of the points that the defendant appellant was attempting to make during his own case to show that he in fact was not involved in this conspiracy he didn't know the individuals involved and likewise here i believe the district court underneath a looked at this too narrowly they looked at this as trying to pick up individual pieces of data on the side of the government that were put forth at trial but in actuality it goes to both mr casea as to france and the government's case that it put forward and it was an abuse of discretion and hernandez rodriguez just proceeded against other traders and backed away somewhat from the contention that this was designed and intended to pull the large orders with intent cantilevered order when it was made in fact we know these orders were capable of being represented several entities that the government claimed were victims of his offense and whose high ranking representatives were the central witnesses in the government's case yet those conflicts were never exposed to mr  never disclosed to the court were never vetted in any way and there was certainly no knowing waiver of those conflicts the facts relating to the conflicts of interest are largely undisputed at least the ones that we currently ice including quite surprisingly that they were sullivan and cromwell was representing ice on a five billion dollars deal that closed the same day mr cossey has trial start even more shocking is that one of the sullivan and cromwell lawyers who had represented ice in a variety of matters over a decade was mr casias lead lawyer and in fact he was the lawyer who cross examined the ice witness mr redmond at trial he is the same lawyer who failed to demand failed to attain the data underlying the ice  two other entities whose high ranking representatives were central witnesses for the prosecution those being d e shaw and citadel there is i think no doubt that this is a showings that are needed are an actual conflict which i don't think can seriously be disputed under the facts presented and secondly and pastor excuse me i believe we lost children are ok we're trying to get to reconnect ok can you hear me i have not heard you for about three minutes and it was my computer why not i am i  apologize so i'll back up a little bit and try and cover some of that ground quickly and obviously if you have any any questions or feel like i started where before you left off let me know  the the short fact of the matter is that there was a conflict of interest because sullivan and cromwell had concurrent representation of the intercontinental exchange among others of the entities whose high level representatives were central witnesses for the prosecution in this case this is a case of concurrent representation because the law firm sullivan and cromwell is the relevant entity and that's made clear both under the case law and the ethical rules that require firms to avoid conflicts not individual lawyers but even if it was the individual lawyer who was the pertinent issue mr ries there mr cossey is lead trial counsel at a decade long relationship where he had represented ice on multiple matters and those are the only the things that we know about based on our research of the public record when we asked when mr cossey his attorneys asked sullivan to identify whether or not they had represented others of the you know twenty plus entities who were involved in the case sullivan and cromwell responded by simply saying we can confirm that sullivan and cromwell represented under color versus sullivan what we need to show is the actual conflict and then an adverse effect and of course the adverse effect is very different from what is required under st intentionally is a lesser standard than what is required to show strickland prejudice an adverse effect merely requires a showing that the lawyer did or didn't do something because of the fact that they represented  the other client as well we have listed a number of concrete adverse effects in this case took off a few for for reference here but one is that counsel failed to get the data underlying the ice summary charts which were obviously critical evidence against kostya as massages and said we don't even have that data today but they didn't even do the most fundamental thing which is to get the data underlined summary charts that the government was offering and there is no doubt that the summary charts were critical evidence that the district court agreed to that were stated that the government stated that below and i believe this court cited some of those summary charts in affirming the conviction on direct appeal there was a failure to investigate those ice charts there was testimony from the ice witness mr redmann that mr cossey on a particular day in a series of transactions the last one hundred and twenty two thousand dollars on a large trade and we now know that in fact that those losses came from a series of small trades and that is not in significant that piece of testimony was used by the government to argue that clearly he didn't want to have his large orders filled because this is what happens he loses a bunch of money when those large orders are filled that testimony was inaccurate in the extreme and it was used as a cudgel against mr cossey if they fail to so the answer in part is we don't know we don't know all of the subject matters that sullivan and cromwell represented ice on but it was not only transactional matters and regulatory matters but also litigation there and so you can think of a whole host of things that they may have learned how the exchange works what their view is towards trading programs like these and more importantly i think push items on certain things that they would have other ones including and will you seem to be suggestion suggesting players get your colleague that perhaps you  and we don't have all of the information we need are you really arguing that we should so this back to the district court has directions to conduct a hearing so your honor i think that's the minimum that's required but i will tell you i think there is plenty of evidence in the record right now for the court to make a decision on the merits of this the ice conflict is not the only one and so you have the conflict with one of the central arguments that the government made at trial was that mr costin's braiding was unique that he was an outlier that nobody else was doing citadel on the issue are trading firms that have these these high frequency trading algorithm algorithmic programs and nobody from sullivan and cromwell said hey i want to know what other people are doing it is a piece of information that would have been critical to showing good faith if other people were doing the same thing it you i don't know if i sit here whether any of the other firms that you're asking about the firms that were mentioned in mr cossey is proud whether any of them were indicted for smoking i don't know the answer to that i don't know one way or the other a subpoena that was issued and you can see in that subpoena that they asked for information about entities and traders who were not their clients and specifically omitted to ask for those types of data with respect to think anyone sitting here can seriously even speak that there was an actual conflict in as far as an adverse effect we've listed six or seven of them that are that are concrete i started going through those before  but those things are not going to change we know that there were things that council did not do that any council would have done if they were going to investigate the case yet to begin to underline the summary charts find out what other trading firms did treat other entities the same as you treat your other kurds or former clients and they'd simply did not do that in this case so i believe that we have sufficient information in this with ice with d d shaw and with citadel what were the subject matters of all of those representations when did they occur did mr reisner have any financial interest in the monies that were received on any of those engagements did he have any involvement in any of those engagements was he you know the partner who was responsible for bringing ice into the firm as a client we need to know the details of what that relationship was and we haven't heard anything from  evidence that we have which is substantial is all things that we were able to find in the public but we don't know you know the the list of a dozen or so all matters that we know sullivan and cromwell and mr ries the person who were involved  maybe just scratching the surface so could you have ten thousand dollars out before the st trial so judge the attorneys have an obligation under the ethical rules to identify con law firms have to have departments that are devoted to vetting conflicts before a client is taken the lawyers have an obligation to identify to the client here is a conflict and put it on the record every one of us here has been in a court you you suggest in your brief that the trial defense counsel treated the entities with whom his love for him had a relationship somewhat differently than other potenti witnesses in terms of getting background material or could you elaborate on that a little bit how was he different so i'll give you two examples one your honor is what we talked about before not even government witnesses is what i referred to a little bit earlier which is the subpoena that was issued to the c m e where they asked for all the relevant trading data related to certain traders  nineteen at pages five through nine it's the subpoena and you can look at it and you will see the disparate treatment of what records they ask for between clients and non clients in identical situations so those are the two primary examples of the seven hundred million rows of data the equivalent of fourteen million pages of data from simi and i and then he goes on to say that he used that data to quote benchmark those are his word benchmark mr cautious trading activities relative to the activities of other trade in the course of mr evans is testimony trial counsel then admits six summary chart defense exhibits five hundred and twenty one through five  seven in which mr evans does exactly what he said that he would you then shark mr cautious trading activities relative to other trades and even more tellingly i'd like to direct the court's attention chart three was presented through ice witness redmon redmon testified that mr cautious order to trade size ratio i mean ice brant market was one thousand five hundred and ninety two percent mr redmond earlier version of summary chart three that mr redmain removed prior to trial and trial counsel made this point again during closing mr redmond removed data that if added to i separate chart three would present a different picture of the defendant's treating activity so this is your evidence defense expert did add that data to his version of my summary chart three and that's what is defense exhibit five hundred and twenty five and i think testimony presented a picture that refutes this idea that mr kasha did not have access to the underlying data and that his trial counsel somehow because but for a conflict would have a team to date they have the data the only data that they did not have as the government conceded protest trial was at subset of data underlying i summary charts fix the government recognize that that was an error conceded that it was evidence that difference is a lot of this one is the appropriate focus is indeed the cancellation of large orders following as well to be what you are now saying about some is i think that the impact on that chart would have been equally as modest as it was o are you saying that the impact on all of the other summary charge would have been equally as modest  what you seem to be thinking about three and i'm saying that the impact on six is modest i think your understanding is correct that it was a difference of ninety six percent versus ninety one percent when looking large order cancellations following small order of three with respect to i summary chart three i'm not saying that there were any errors and i'm not saying that there were any errors with respect to any other of the summary charts presented either ice or  my point with respect to a summary chart re is that i think mr evans is testimony the defense experts testimony on that chart the law is the notion that defendant did not have access to the underlying data it also the notion that defense counsel somehow i think mr campbell called it cold punch it that somehow defense counsel pulled punches with respect to the ice witness when in fact not only did they cross examine the ice witness on the i summary charts but they don't use their own defense experts to attack one of those charts and to produce their own version of that charge and then in closing argument mr crashes counsel karen seymour attacked again i say three but then also attacked ice six and talked about how ice six showed that other traders were beginning to mimic mr kasha that they were after a period of efficiently that they performed adversely either because of straight ineffective assistance of counsel or owing to a conflict when in fact what they did is advance a two pronged defense strategy they argued st and foremost that the defendant acted in good faith that he he treated as he did that they were going to dispute the treating activities but they denied the illegality and they had advanced that defense through primarily through the defendant's o the defense that trial counsel pulled punches when in fact they and they retained their own experts who testified that he reviewed seven hundred million wrote the data that he did that analysis in order to quote benchmark the defendant treating activities relative to other traders and then they produced didn't show the jury their own summary chart that compared mr crash of trading activities relative to the other traders and  he cancelled it large orders at a lesser rate than other trader so they did it defense counsel mr cautious trial counsel did exactly what defendant now on appeal is claiming they did not and based on that there can be no argument that even assuming a conflict that there was an adverse effect on their performance or that mr ashton was somehow prejudiced by their perform differently than the other sources of information shared judge and i'd like to take that entity by entity because i think the analysis differs a little bit so let's respect i used i don't think that that he didn't receive certain data from ice or that his defense counsel didn't pursue that dina for ice the post trial record indicates that he felt the same way about c m e because he subpoenaed c m e as well after his trial seeking additional data credible claim that those two exchanges were treated differently and therefore defendant cannot establish the relative cannot satisfy the standard under kyler that but for a conflict this trial counsel would have acted different with respect to d e c shot in citadel i think it's important to keep in mind there is no allegation here that sullivan and cromwell concurrently represented those two entities in the district court at best defense counsel prior representation tast the defendant needs to establish that there was a substantial relationship between those prior representations and his current keys and he also needs to establish that his trial counsel received confidential information relevant to his case in those prior cases so back in two thousand and nine before the spoofing statute was even an acted by congress he would have to show that coun received a relevant information from g e shot and sit it out with respect to trading activity that he did not engage until two thousand and eleven with respect to charges that were not brought until two thousand and fifty so that's speaks a conflict i don't think that conflict had an adverse effect on their performance mr cash argues in his reply brief the citadel were that those entities the defense counsel did not subpoena for trading data related to those to seven at exhibit three in addition defendant argues that with respect to trading data the trial counsel subpoena for records from a number of traders and i will mispronounced their names but one tr for example was roma and there are two other traders i apologize that i forget their names off the top of my head and that you know he draws a comparison that they subpoena a trial counsel subpoena records for those three traders and not for where there is no allegation of a conflict and where there was no subpoena for his treating to or at least not at the same time that defense counsel is alleging that the other three trading entities they're treating did i was request it and so it cannot again be that there was an adverse effect for purposes of cuyler where another trader for whom there is no allegation of a conflict was treated the same way as do you shot and citadel defendant cannot establish the record reflects that there were other traders after mr kasha who are indicted for similar conduct i don't know but i do not believe judge realm of the record reflects that those traders were the same related appeal that there are other traders who subsequent to mr kasha were in charged with similar conduct i do not believe that the record reflects that those traders are treaters who testif costin's i would like to touch on a few additional points with respect to the argument that trial counsel performed adversely because they did not cross examine mr redmond with respect to his testimony that the defendant lost one hundred and twenty two thousand dollars and some change based on a large order lost the argument that's been advanced is that in fact that loss was related to a small order to a series of small order trades and that  that he treated at large orders in small orders in the same way that he was quote indifferent to that and that this was an argument that was advanced again in closing mrs seymour defendants trial counsel argued that defendant sometimes he makes money on his large one orders sometimes he loses money on his large orders and so it was you know there was a strategic call there to be made which is to say that leaving mr edmunds testimony on touched a lot of the jury to understand that there wasn't fact a time at least one time that mr kasha allowed a large order tray to go through and that sure he lost money but again that wouldn't have surprised him because he was indifferent to large order trades for small order trade his trial counsel argued in closing that simply the nature of of the trading world the trading business that's how it works with respect to the rule thirty three motion for a new trial i want to touch upon the prejudice argument there was there have been arguments about related to mr parks testimony and professor besson binders testimony and five setting aside the attacks on the summary charts which the government firmly believe where is the government's trials statistics were based on the cancellation of large trade orders following the execution of small trades another words there is a comparison of apples to oranges i think that's right judge and i think that the that they are comparing apples to oranges with the post trial data and i think that the jury understood exactly what ice summary chart six was supposed to represent large order cancellations following the smaller tree that's what mr redmond testified to that's how the government characterize summary chart six in its closing and in fact that's how defense counsels defendants on trial counsel characterized by summary each for six in her closing arguments so with that judge's unless there are any court will hear argument now in the