the honorable united states court of appeals for the st circuit is now in session all persons having any business before this honorable court may give their attendance and they shall be heard god save the united states of america and this honorable court court is in session focus my argument today on the issues of the jury instructions as the court is aware there are two problems we argue with the jury instructions the  is the so called foul or error or that the problem with if our situation for the nd is the failure of the court to distinguish between  saving and abetting an accessory after the fact with respect to the foul or part of the argument we say let the jury fail to instruct find the defendant's intent was to prevent possible communication with a federal officer as opposed to the phallus standard which is that there has to be a reasonable likelihood that the communication would occur in the your honour's i'm sure are aware are familiar with the fowler case in this case made clear that it is not enough for the almost sandor there's always a chance for the possible communication but in order to meet the terms of the statute the supreme court has said that there has to be a reasonable likelihood  the instructions were given the as i understand it and again this is from reading the record as opposed to actually being there but as i understand it there was an objection originally  but there may not have been an objection after the instructions were read to the jury during the trial during the during instruction of the charge  think the nature of the charge is such and it was critical crucial to our way or to the jury's understanding and the jury could very well  incorrectly could have could have convicted mr salami under the under an incorrect standard understanding that is not the law under standards and there's not adequately or accurately  for you to move on just two questions on the prejudice prong plainer could you explain how in your view the structural error that you're identifying clear if there was ever given the evidence in this case is if the evidence supports the finding that there was a that he committed the killing what evidence is there that would suggest the motive was other than overwhelmingly to silence him from speaking to a federal official because that's what you need to show that the instruction that you're right of the government it has to be reasonably likely that the communication was about silencing a federal official as opposed to a state official i don't see thought alert saying anything about how likely existence of a communication at it well i think there's language in fallon that makes that clear your honor and i think that if you were to hold that and simply a possible communication to someone o the probability or possibility standard this is just doesn't the statute speaks in terms of possibility and i thought followed really went to the kind of situation where there really wasn't evidence from which the jury could infer reasonably were the communication was going to go to a state law enforcement or municipal law enforcement officer versus a federal law enforcement officer and that it was it was kind of a toss up  and in the courts if you get to have a reasonable probability that it was going to be a federal law enforcement officer not the facts in this case seem very different than fowler and there are plenty of federal law enforce lots of lots of evidence that it could be a federal contractor so you know i'm just not sure in that factual context where fathers would apply well i think it's interesting your honor you used the word swirling around our the phrase swirling around and i think that's exactly the point i think you know there has to be a difference between happen and of course the court is aware that in fact this victim of the murder never did make any kind of statement a federal law officer or into a church so the t you thank you your honors thank you mr spock you can get your device at this time per well thank you attorney cheri if you could please introduce yourself on the record for us certainly  moment regarding follower i mean he is never under federal surveillance he is never on a federal wiretap he is never involved in a federal crime at least that comes out in the trial or that he's ever been convicted of or you know that the new hampshire case came up with not involving jr but there was a state crime in the state of new hampshire  he's not under federal investigation he never had any criminal trusts could you address the nd prong claim the nd prong in terms of the communicate if you yes i would say that it is not and i mean he says we tried to point out in the trial it wasn't reasonably probable it was going to be any communication at all and as it is my code if you need it to be might well i think five minutes remaining ok i think that it's clear that it happened it has to be reasonably a reasonable likelihood is the test under fall or as opposed as applied d historic time that's part of what made the case interesting but it's there's so many different factions but also factions literally within the f b i and federal agencies and why do i bring that up it bring that up because i think it also reflects on the question of what is possible as opposed to reasonably likely out reasonable likelihood through i point out that the jury in this case was out for i believe about four days out so they clearly were wrestling with something here i think it's a reasonable thing to the western thinking the motive for us up i think they i think there were i would say there was competing evidence right as to whether the sarra was just killed for being a bad manager rate and that they were pissed off at him and i use that that's part of what was in it in the in that the testimony they clearly came to believe that you know he was killed to prevent the communication but it's not clear that it was a federal communicate and it's and it is particularly we did i think it's a real question as to whether given the appropriate instruction they would have found that there was a federal connection with intent this particular defendants in ten and our sufficiency argument that he if the statement is actually untrue or big the government's position would be it doesn't matter whether it's true or not because it really speaks more to slim intent not to the not to the the fact that the sorrow spoken was it correct is that we're closing arguments or just or only at closing arguments where that's hanging out there how does that affect the jury's consideration of the possibility or a possibility of where we don't know who is specifically and intended to communicate with and the government is saying that  relevant and it was highly prejudicial to my client as to your question of whether it was corrected it was not corrected before closing argument the government says the kind of one throwaway line corrected it i would point out that in context they don't even say that they're talking about mis mr y shaq when they say i think they say something like no he didn't communicate the federal  authorities or didn't cooperate that's what they said but they didn't say he didn't communicate with mr weiss act that was never corrected and it is it a real problem particularly and it's a unique situation because mr why sh sitting there in the courtroom and has over the course of that this seat six week trial taking into account some illnesses and things you know build a relationship with the attorneys there  know and i if you could just six think lee isolate for me this one point it would be helpful to me as i understand that the our usage is that by not having by having  nd one of the contentions you make is that there was an inappropriate finding of your client being a coconspirator with salamis with respect to certain statements that were made about your slime its clients and bear on his motives if i agreed with you that it would be problematic to st your client as made in connection with the l c n conspiracy wouldn't be a coconspirator statement that could be admitted on that basis what is the statement that was admitted on that basis that you say goes to your client's motive that creates the prejudice that makes it improper not to severance you follow thanks at least if you could just identify what  terms of statements it's it's really more the deluca statement inter in terms of the truth yellow and i understand that there are arguments that luka is in the conspiracy we've argued that that worship of the conspiracy was was not undone but that i think as to the statements  i wonder if it's possible and judge forgive me if i'm just suggesting this if he you did his video but kept his audio open so that we could hear him it may it may work better had been subpoenaed by federal officials and appeared on a grand jury frank jr was under federal charges hillary had cooperated clearly federal law enforcement pressure was what was going on and that is where is that any communication w occurred let me just ask you about that piece of it though with respect to weed it why is what you're saying as convincing it was not charged as a conspiracy so he's just charged with his own  and why isn't there at least more reason to doubt that his purpose was the same as salamis and that his purpose was you know he was stealing from him that's why he was pulling well i think they probably  to it's not a sufficiency standard i mean would it's a prejudiced standard so is it is there a reasonable probability that the jury would have found otherwise in this long as there seems to be at least a claus elder statesman because i think there was you know we don't have only circumstantial evidence we haven't specifically have his conversations frank jr but he was he was talking to us and that is the time i think this is important that isn't the same conversation which they talk about lowering him to his death and they talk about the need to bring him to a place where he would feel safe so it's not like i don't think this is a case where there's by any means equivalent evidence on both sides i think there's pretty clear direct evidence about silencing you do get to the question about whether it's a federal official but i think again any standard of likelihood is met and even if that standard applies there certainly the jury was that was the only threat that was being faced that was the only type of communication that was said issue and i think that the jury not only certainly could have found but i think the overwhelming evidence point to that any communication would have been federal so i guess i just simply i disagree have precious analysis that this is a situation  where it was reasonably likely that the jury they were asked to find whether you know whether there is a reasonably likely communication that would have turned out any differently to federal officials and i would also point out because i think it's important to  sort of watering down the intent is in some sense weight or light lightly waves here because they're arguing that it violates fowler and as we pointed out every well interest not the intent but he addressed a situation where you don't have intent and you need  what does the government need to prove with respect to whether there was a communication at all is it enough of a fanciful or remote possibility is it that it has to be reasonably likely there would have been a communication what's your account of the statute in terms of what are what the probability of likelihood of there being a communication has to be what was required to  and we discuss it here if we think that in a case in which the government is relying on intent evidence of intent then there is no free standing or separate obligation to prove that a communication would be reasonably likely made in many cases and then i think the supreme court case discusses this you are in preventing communication without any idea about whether it's going to happen or not your kill is long as the intent is shown to prevent communication to what turns out to be a federal officer the federal without going to the likelihood problem and i think it's really clear in a couple that we raise and are very this court is saying that in a case where there is evidence of a tent the statute applies directly without any need for any gloss and that's what we had we had the likelihood of the communication really isn't an element it's an intent to prevent you know occasion and it's and i think that whether the communication was or was not likely to occur is kind of not part of what the  statute is asking for it's in less again in circumstances where fowler applies and we have no evidence of intent and i think again i think i was really clear about this it's interesting a small caliber of cases where someone is killed to revet them from talking generally without any ability to prove intent then we ask this nexus question we say a couple of cases they try to distinguish but they make clear that where you have intense evidence well it just really doesn't is an implication and that's that's why i'm saying i don't think al has anything to say about this i also don't think that that gloss of communication or possible communication really adds or changes anything because the likelihood is communication isn't what the statutes aimed at it's the intent in a case where you have my question about the diluted statement because in a trial this would be such an easy thing for the prosecutors to cure as to why jack is sitting right at the table when deluca says now the judge knows it and the defense attorney knows it and the defense attorneys can do what they want to do it that in cross examination maybe they do something maybe they don't but it's out on the table in this case that was left to sit for weeks and then only really almost barely gets corrected at the end i mean that just seems to me i just don't understand why they didn't ask for congress right in that moment well i think your honor suggested that part of the reason in discussing this  that fact for its truth then even more important that you would you would let defense counsel know and let the judge know that that the statement was was unproved well and here i think one part of this is in the record one is object it was information that they had not heard that would be a communication with law enforcement presumably would be something that disclosed and the other part which is unfortunately not in the record because it wasn't objected to was that it was disclosed this was a statement was not the st time that d had said this this had been in prayer testimony grand jury testimony i believe that had been produced in discovery so it was not a surprise and that's why there was no objection now i realize that's not in the record but it's  explain why there was nobody saying wait a nd you never told us he was talking to you or that's the st time we've heard this it wasn't the st time they heard it they didn't object because they knew it and i think the other part of this important is if they had a concern that a belief that it was true was problematic to them and were sorting out they had numerous opportunities to correct it they could have on cross examination asked to look at it to ever come to find out whether that was true or not you know he may well have known but they  my enforcement officers on the stand subsequent to that and they could say was there any evidence that he was cooperating that he spoke to mr rush they could have called witnesses in you know as part of their case to question it then they didn't the reason they didn't is that they knew it and they for their own reasons chose to to let it lie but the idea that they were disadvantaged it was unfair to them again there was no objection that it was that it was a surprise w no attempt to cure the government did not rely on it for its truth presented evidence that he rebuffed attempts or cooperation and said so in closing so i get there it's possible i suppose it came as a surprise to the judge it stay i think we have to stay with what's in the record but if we stay with what's in the record then i'm not following your argument is to have counsel that it should have corrected this because let's assume they thought that were it not true prosecutor would have said something so well i guess they assume it was true because the prosecutor was silent well i that in any fashion it does become of an error issue and they cannot show that it was court to help me explain what i now i think fowler relates to this imagine if you will a passer by witnesses one person pushing another person into a car  looks at the situation and thinks maybe it's a couple having a fight maybe it's in domestic dispute who knows what it is but thinks no big deal now can do anything about it not really my business is that person reasonable is that person is it possible that that person will describe the situation to law enforcement and that that law enforcement may be federal sure it's possible it's always possible is it reasonably likely that that person will describe that situation to a law enforcement officer no it is not reasonably likely and in fact the person hasn't done it here you would have to show the government would have to show not only that that it was reasonably likely that the victim was going to inform we can even judges that it was going to inform a federal law enforcement official and that that was the reason that mr salami allegedly had him killed or killed him and under those circumstances you have a situation where one out of fifty chance sorrow is going to talk to the u s attorney and so he ordered him killed and killed are you saying that wouldn't violate the statute your honor i have very limited  knowledge of atlantic city you are now saying yes so i don't know what's considered reasonably probable in terms of violence but i think that there has to be there has to be something  make said more than possible and i think you know under any circumstances some something like that is always possible if you have knowledge of a crime or of something you think may possibly be a crime then that's always possible that you would talk to law enforcement about it question about just the intent that i was trying to stop them from making the communication and i guess what i'm trying to figure out is with respect to that issue loop issue i would just point out that the government argues that law enforcement was put on the stand later and we could have tried to correct it through law enforcement but the individual my belief handlers were meaning the individuals who sat in on his interviews were in the courtroom all acknowledge that which isn't part of the record i don't think but they were not call to the stand so it's not something we could have cleared up with them but also point out that it's a statement allegedly from so lenny's so that the ability to cross examine on that is very difficult you know as we've pointed out with the whole it's not true we want to know that the luka in other ways i think you if one looks at the tapes in the way we went out and with the tapes we tried to show he was lying on obvious things i mean literally  disconnect from the hearing at this time