Legal Case Summary

As case of today, still this morning we have four minutes left. United States, Viotaviana, numbers 11-45-53 and 13-11-19, Messers-Berman and Coyne. Still good morning, Your Honor. May I please the court? My name is Mark Berman. I represent Ronald the Taviano, who is a defendant and a pal in this case. And I'm going to go ahead, you want time for rebuttal? Yes. Just two minutes for rebuttal. That's fine. I'm going to cut right to the main issue here. Assuming that the judge here asked questions that crossed the line and that the judge became, in effect, a more of an advocate than one merely trying to aid the process. Isn't that nonetheless, even with that assumption, harmless error in light of all of the evidence of guilt of Mr. Otaviano? And I could run through a host of things that it appears that there is no way that I can see that this could go back for ten retrows. And he has no chance of winning. So, Your Honor, I don't think the court can reach that conclusion. That's not the case. Okay. What, what, I mean, let's assume that the judge, he questioned the veracity, the truth telling ability of Mr. Otaviano. And Jury's give a lot of credence to things that judges say. And let's say that was a bad thing

. But does, does that so taint the trial that these other items of evidence should be disregarded? Yes. So the answer is yes, it does. And here's why. Otaviano's defense ultimately rested essentially on his own credibility. He obviously had a constitutional right to remain silent. And he opted to give up that right to sit in front of the jury, to look them in the eye and explain to them. But let's just take a one by one. Let's go with the pure trust organizations. The government introduced an actual binder that was given to customers. And it contained a quote, secret section in the back that told customers they just need to make sure that all of the expenditures of the accounts appear to be the decisions of the trustees. The trustees would have, would have proved whatever expenditures were requested. Secondly, the IRS special agent provided expert testimony that the PTO's that Otaviano was marketing and selling were sham trusts for tax purposes. And an undercover agent testified about buying a PTO directly from Otaviano and recording phone calls with him where Otaviano described how the trust would be used to evade taxes where Otaviano claimed that he had, they represented that he had graduated from law school. They had transcripts of Otaviano's meetings with the IRS regarding tax defecency notices of the IRS told him the trust were taxable. And during one of those meetings he acknowledged that if the tax payer controlled the trust he had to pay taxes on the income. That in of a, forgetting what the judge did here, I mean the judge got upset with, you know, and he may have asked a few questions too many. But just on the PTO's and we'll get to the, the, the, the BIC's in a minute. How do I get around, how do I say that's not harmless error here? So, here we go again. It's not mine

. Yeah, that is a life one. So, no, I'm kidding. So, whoever is just turn it off. So, hang off. Whose phone is it? I'm sure I tried to put on the new phone that I can't. Oh, you're like the rest of us. Yeah, I usually can put it on vibrate. I wish I could. Yeah. Well, there's new files. Is that the, I, I phone, I find? No problem. I've pushed every button and tried the communication. No problem. No problem at all. So, we've all been there. You know, first of all, I don't, I don't think one could put to the side the judge's excessive questioning. And I'll come back to that because I want to finish answering the court's question. And, and the answer is, yes, there was inculpatory evidence in this case as there is in every case brought by the US Attorney's Office. The conviction rate is above of 90%, and just the cases that go to trial

. But the fact is that the right to present a defense means something. And the defense in this case was Mr. Taviano sitting in front of the jury and saying, listen, I get that they're, that the government's presented evidence. But I'm telling you that I did not intend to break the law that I honestly believed that what I was doing was both lawful and effective. And notwithstanding that evidence, you should believe me that I'm a truth teller. It isn't your point essentially that Mr. Taviano's own testimony is so basic and fundamental that the harassment from the questioning struck at the heart of your defense. It's the most, it's the most basic fundamental. It's a criminal defendant taking his own life in his hands, essentially, and trying to persuade his fellow citizens that notwithstanding that the government elected not not. Do you think if the judge here did not ask those questions, do you think that they would have been omitted by the prosecutor? I know that they were omitted by the prosecutor. The way what happened was the fact that he had a, he was trying to get into law school fraudulently that he had represented that he had. That they had law credentials and he didn't. I know that you were admitted by the prosecutor. As minute or a minute. I'm sad minute or a minute. Oh, minute. Judge Mortis. Well, turns out I guess if you're the prosecutor, you, you, you're remembered for you, you don't have to, you don't have to repeat them. But the point is that these are so fundamental and so basic

. You, the prosecutor, your teams would have asked questions along those lines. Well, except that Judge Mortini's cross examination of Otaviano began undirect examination, continued after the government had finished its cross examination, and then resumed on redirect examination. So when, when the court asks whether the government would have asked the questions, one can read the transcript and see the questions that the government asked. And then the Judge Mortini came back and hammered him and hammered him again and hammered him on other areas that the government perhaps had approached in a different way. And that's simply not the role of the trial judge to become a second prosecutor. I mean, that's the language in this court's cases over and over again. The judge cannot be second prosecutor. The judge should not even approach the appearance. You're absolutely right. The point is, would it make a difference? And the answer is, if you're asking me, would Otaviano had been acquitted? I know I know way to know whether he would have been acquitted. I know that a jury could have believed his testimony that he, that the issue was intent, that he did not intend to break the law. And he had the opportunity, he had the right to be present. Even though he had fraudulent writing in the law school, even though he had never filed a tax return, I mean, I could go on. I mean, the amount of evidence I gave just with regard to the PTO's and not with respect to the BIC's. I mean, it's a mountain of evidence. There's the question as to whether a jury could have convicted as not the same opposite side of the same point as it had, could he have been acquitted? Or even whether the jury could have been hung. A single juror could have believed Otaviano or that, you know what? I think this, his testimony, his own testimony, gives rise to a reasonable doubt, and that the government has not satisfied. It's burdened. And he, and more significantly as a institutional matter, structural matter, he had a constitutional right to present that defense

. You should believe me, defense, without having two prosecutors impeaching his credibility. What's our standard review of this question? What do you say our standard review should be? So I would suggest that the court's standard of review is, well, in essence, it's plenary. The case still doesn't say in so many words. But the question becomes the one that the government itself asked in the United States versus Kennedy, which involved Judge Martini just a year ago, where the government asked this court to reassign Judge Martini, because he had asked questions that the government felt suggested an appearance of partiality. And that standard is, could a reasonable observer detect distrust and disfavor of defendant Otaviano in Judge Martini's question of him? That's the, that's the standard that the government asked for, and this court applied in Kennedy. And if it's good enough for the government, then it's good enough for the defendant to look at Mr. Otaviano properly preserved his complaint, so that it takes it out of the plan air review. And the answer is yes. First of all, he raised the issue by moving for a mistrial outside the presence of the jury, which was an appropriate way to resolve the issue. When did he do it? He did it after his testimony ended and the next morning. Now did he do it contemporaneously? He did it both after it ended and the next morning. The next morning. He did it the next morning. If he were counseled, he'd be too late, because the rule says that the first available opportunity, which would have been at the conclusion that day. So we would need to give him, which he might be entitled to as a proceed litigant, a little bit of latitude that we would not give a counsel to defend it. Do you agree with that? Well, I'm not 100% sure that attorney would have been too late, but I do think that the court has to view that objection in context. And the context is that Otaviano was really in an untenable position. On the one hand, he had been forced to proceed with standby counsel for purposes of his own direct examination, which he didn't want, but Judge Martini for reasons unexplained, required him to proceed with standby counsel working off his script. That standby counsel did nothing, not at the side of our conference from which Otaviano was excluded and not during the direct examination

. And by all accounts was ineffective if he actually was the attorney. And in fact, all of the attorneys stood mute. I mean, Judge Martini's cross examination of the sweetness goes on and on and on. And Otaviano was not the only attorney in this courtroom. The government was in the courtroom. There were other defense counsel in the courtroom. Not a single one had the intestinal fortitude to say, hey, Judge, you're going overboard here. But this is to get back to Judge Ambrose's initial question of harmless error. Are you arguing that this case is not susceptible to harmless error analysis because what happened here is structural? I think I'd like to be able to say that, but I think the case law to the two few categories that say that. Case law suggests that that harmless error can be considered in the context of this claim as opposed to the Sixth Amendment claim. Having said that, if one looks at the case law from this circuit in terms of the factors the court has considered, certain factors become clear. So for example, the court has considered whether the trial court's involvement was just isolated comments or whether his involvement was extensive and persuasive. Whether his questioning was to clarify an ambiguity or whether it was to emphasize the government's proof or to impeach the defense credibility. Well, but those are questions about whether what he did was wrong. Right. We're assuming what he did was wrong. Right. But then we're in the difficult speculative land. As you candidly acknowledged, I think wisely and professionally, I don't know what would happen, but harmless error analysis always requires this court to go through that looking glass, so to speak, and try to determine whether it would have made a difference

. Right. And what I'm saying is that those factors are also relevant to consideration as to whether the error was harmless. And I'll just go through them and I'll explain why the cases of also look to whether the comments were directed at an attorney or whether the questioning was directed at the defendant himself, whether the comments were made outside the presence of the jury or in front of the jury, whether the court's questioning was even handed that he did the same thing for the governance witnesses or whether it was one sided in partisan. If you consider those factors, which I've gathered from the case law, in each one judge Martinez involvement in this case fails, his questioning was extensive and pervasive. It emphasized the government's proof and impeach the defense credibility was directed at the defendant himself. It took place in front of the jury and it was one sided in partisan. And when all of those factors coalesce together, I think it becomes much harder for the court to say that the error that the error was harmless. And in fact, if one looks at the cases, actually, that's a very good place for us to turn the asked Mr. Koyn to respond to what you just said. Thank you, Your Honor. Thank you. Good afternoon, Your Honor. May I please the Court, a USAid Mark Koyn on behalf of the United States? If you could pick up where the six, seven points that were noted by Mr. Burman. In the homelessness. And I agree the appropriate place for this court to begin is to take, assume that the questioning, at least in its totality, was improper and exceeded the judges' discretion on the rule 614. We didn't defend that on that basis. What we have defended was essentially harmlessness, given the overwhelming evidence of guilt. And I think I don't disagree with the factors that, with the relevance of factors that my very capable colleague has articulated for the court, but there are additional factors as well, which include the length of the trial, in this case 3 1

.5 weeks, the amount of evidence against the defendant, in which, as this Your Honor has already indicated, overwhelming evidence of guilt concerning this defendant, including coming from his very own mouth. Even before he takes the stand, even before he's making an opening statement from, sorry, after he's making his opening statement in front of the jury, well before he takes the stand, the government has already introduced evidence of this defendant on a tape record call, among other things same, with respect to being able to post his Delaware beach house as security to get out to get out on bail. We have his stamp, Harriet can stamp it, and I'll swear in a stack of Bibles that this profanity signed it. That's coming from the defendant's own mouth, played in front of the jury. And so his credibility, I submit, Your Honor, was shot long before he ever took the stand. You have that. So, overwhelming evidence of guilt, together with a very long trial. You also have, from our perspective, and I think the key cases for Your Honor is to consider Arwellensky and Badi. I think that's what the court has in the greatest detail, dressed, judicial questioning of the sword. Those cases both involve the same judge from the District of New Jersey. And in Badi, a total of three, Badi and in Lensky, a total of three different defendants, raised essentially the same claim that Mr. Topic, in the case when the judge started doing it today, I'll come no one. I realize there's some tension with this particular judge. But, from, with your office, but you would think, Your Honor, I'm going to get there. I'm going to handle that. Your Honor, I've been thinking about this case as you can imagine for quite some time. Mr. Berman's briefing and I think in early October of 2012, and I've had a long time to think about what I would have done, could have done, had I been in the shoes of my colleagues at trial. I'd like to think, although I can't say with absolute certainty that at that moment, I would have been able to articulate the objection, or at least to stand up and try to put a break on things

. And I would be wary of imposing upon prosecutors an absolute duty to do that. I think we always, and all prosecutors, including this trial team, are cognizant that their first informed must-doodies to see that justice is done. Irrespective of what happens at a trial. It's not the verdict that matters, what matters is that justice is done. But I don't honestly believe that these prosecutors should shirt that duty here. I mean, I think the problem we're dealing with is, we have a pro-say lit again in a very long trial. The pro-say has an absolute, and this uptails a little bit with one of the other claims that are being raised. But I don't think that claim, and if the court wants to address that claim, I'll be happy to deal with it. But, first and foremost, to the right of self-representation, the core right, this is Supreme Court's emphasized, the McCaskill, the Wiggins. Is the right to control the presentation of your own case in life? That's the right to control the presentation of your case in front of the jury. And so I think any counsel when a pro-say is involved in court in front of the jury has to be very careful about doing anything that isn't with the pro-say's consent. Because then you start, then you, then you're on substantial tension with what the Supreme Court says. It's the core right of self-representation. That being said, I'll be blunt, I wish the questioning didn't happen. I certainly wish that the judge had not asked questions after my colleague concluded his cross-examination and that the judge didn't ask further questions after we direct. But I think when you view those questions in their totality, and I think it all told those questions, at least the portions that are quoted by my colleague in his opening brief and sort of related question, that's about 20 pages of trial transcript. And I think those 20 pages are too much. It's just, in my view, the questioning should have been far less than that. I think all of us can agree on that

. But when you compare, let's just ex-solid all of those questions out of it. And you're left with a cross-examination by a prosecutor that was like shooting fish in a barrel. I'm absolutely like shooting fish in a barrel. This was sort of easy target after easy target after easy target. And then on top of the cross-examination by the prosecutor, you have a tabian, not only a tabian, on his own words that are damning, that are introduced against a trial during the prosecutor's case in chief. You have a tabian, on his own statements during the course of the trial. For example, in cross-examining this McDermott, the employee who became sort of a very important government witness to explain what was going on in this. In this workshop of fraud, he tried to contradict her testimony that Tabiano had ordered a server, the real server of the company to move up into a high attic crawl space. And he tried to get her to agree with him that that wasn't the idea of Mr. Tabiano to hide the server from law enforcement. Should they ever come in again? But rather was the idea of an IT professional on staff to better improve signal. And Ms. McDermott obviously disputed that. I guess the point in one sense we're saying, the next time this happens. I mean, you wouldn't be here if this were shooting fish in the barrel. And we didn't have things like the questioning that took place here. You wouldn't be here today. Absolutely, Your Honor. What do you do the next time? I know I think with the benefit of having a year to think about this, I think what I would have done is this. I'm not sure if the signal would have been reached during the course of the direct, because the judge is questioning during direct. After there's the resumption of the direct testimony after the, let's call sidebar, but the jury is out of the room. So really it's a recess where there's the equivalent of a 104 hearing regarding the authenticity and admissibility of this letter that was supposedly sent to secretary. At least there, what are the counsels that say, hey, I think not for nothing, he should be here. And the judge then to the judge's credit. And I don't want to get too sidetracked on that, but I guess the judge got him back in. Correct. And then it's clear that at the end of the day, Mr. Tabiel prevailed on what he wants to the extent. And so I can't think anybody could say that this is really an infringement, a fundamental infringement on the right of self-representation, because he got the exhibit in that he wanted to get in. He tested it. I'm not that exact. Would you response be your honor, if I may? Would you permit the government to pursue that line of question? I think you certainly could have said that after you step down and said I'm done with the witness and the judge has additional questions, you certainly could have said that. And I think again, with the benefit of hindsight, and I want to, I must confess, I've only tried a couple of criminal cases, I've been principally in a fellow lawyer. What I do have is the benefit of looking at an awful lot of transcripts. And acknowledging that this is, at least in my experience, this level of judicial question is not something that I often confront it. And so yes, across your queue could have said that. Simply I'll get to that. Or if you may, your honor, I'd like to continue on that

. I'm not sure if the signal would have been reached during the course of the direct, because the judge is questioning during direct. After there's the resumption of the direct testimony after the, let's call sidebar, but the jury is out of the room. So really it's a recess where there's the equivalent of a 104 hearing regarding the authenticity and admissibility of this letter that was supposedly sent to secretary. At least there, what are the counsels that say, hey, I think not for nothing, he should be here. And the judge then to the judge's credit. And I don't want to get too sidetracked on that, but I guess the judge got him back in. Correct. And then it's clear that at the end of the day, Mr. Tabiel prevailed on what he wants to the extent. And so I can't think anybody could say that this is really an infringement, a fundamental infringement on the right of self-representation, because he got the exhibit in that he wanted to get in. He tested it. I'm not that exact. Would you response be your honor, if I may? Would you permit the government to pursue that line of question? I think you certainly could have said that after you step down and said I'm done with the witness and the judge has additional questions, you certainly could have said that. And I think again, with the benefit of hindsight, and I want to, I must confess, I've only tried a couple of criminal cases, I've been principally in a fellow lawyer. What I do have is the benefit of looking at an awful lot of transcripts. And acknowledging that this is, at least in my experience, this level of judicial question is not something that I often confront it. And so yes, across your queue could have said that. Simply I'll get to that. Or if you may, your honor, I'd like to continue on that. Or at some point, I would like to think and certainly armed with what we saw here that I and my colleagues would find a way to just simply ask for a short recess. And I think what I probably would have said had there been a short recess as your honor, we recognize that you have the absolute right to ask questions and to oversee and police search for truth. We recognize that and we're not disputing that. We would just ask that you review the bety and one of the decisions. Because I think those decisions made pretty clear that the kinds of questioning that was going on here were, they were improper. We're not saying what's that. I think that I would have handed the decisions up. And I would have had them with me and everyone in my office is one more sensitive to the, it's, I mean, we always were sensitive to those decisions. But I think, you know, it's easy for a palat lawyers to rat a law precedent, not necessarily all criminal, criminal practitioners or as person in a palat president as we are. I mean, that's why we have a palat lawyers, at least in my office. But so I think this is absolutely regrettable and I do wish, I firmly wish that we had had the wherewithal the time to try to do more to stop it. But all that being said, you have to view this and this goes back to the judge, Amber, first question, which is assess the factors that your colleague has pointed out. Those are some of the factors, but there are others. The length of the trial is certainly a factor this court can and should consider. It was a factor that was what was in part, a positive and bety. And let me talk a little bit about bety if I can have your results. Mr. Kwanle, let me ask you pretty good. I mean, Mr

. Or at some point, I would like to think and certainly armed with what we saw here that I and my colleagues would find a way to just simply ask for a short recess. And I think what I probably would have said had there been a short recess as your honor, we recognize that you have the absolute right to ask questions and to oversee and police search for truth. We recognize that and we're not disputing that. We would just ask that you review the bety and one of the decisions. Because I think those decisions made pretty clear that the kinds of questioning that was going on here were, they were improper. We're not saying what's that. I think that I would have handed the decisions up. And I would have had them with me and everyone in my office is one more sensitive to the, it's, I mean, we always were sensitive to those decisions. But I think, you know, it's easy for a palat lawyers to rat a law precedent, not necessarily all criminal, criminal practitioners or as person in a palat president as we are. I mean, that's why we have a palat lawyers, at least in my office. But so I think this is absolutely regrettable and I do wish, I firmly wish that we had had the wherewithal the time to try to do more to stop it. But all that being said, you have to view this and this goes back to the judge, Amber, first question, which is assess the factors that your colleague has pointed out. Those are some of the factors, but there are others. The length of the trial is certainly a factor this court can and should consider. It was a factor that was what was in part, a positive and bety. And let me talk a little bit about bety if I can have your results. Mr. Kwanle, let me ask you pretty good. I mean, Mr. Ataviana made his formal objection to the line of questioning the next morning. He did. Okay. To one aspect of the line of questioning, not to all of it. The one that accused him of basically hitting that he was lying. The one that was most defrauding the law school. The one that was most objectionable. With a pro-se defendant looking at, you know, federal rule of evidence, 614b. Wasn't that timely enough? Respectfully, I don't think it was and I will point in a related context to a judge, Amber, has decision for the circuit in the United States, to be Rose, which involves waiver of far stricter preservation rule in the context of suppression arguments, where a pro-se litigant failed to raise on a timely basis. The suppression argument that then was being raised on the field. And this court's opinion read, the Rose has offered a reason why he did not raise the issues before his suppression hearing. He has offered no explanation, other than that he was proceeding to say why he did not raise the issues after the hearing prior to this appeal. In this context, we conclude that Rose has not shown good cause for his failure to raise these suppression issues to the district court. That's USV Rose, 538 175, 185 I believe 186. And that's in a context suppression where there's an absolute waiver rule. It's not just for perjure, it's waiver. Here we're saying it's for perjure that should apply. The standard here should be planar and I think there's a good reason for that. A couple things

. Ataviana made his formal objection to the line of questioning the next morning. He did. Okay. To one aspect of the line of questioning, not to all of it. The one that accused him of basically hitting that he was lying. The one that was most defrauding the law school. The one that was most objectionable. With a pro-se defendant looking at, you know, federal rule of evidence, 614b. Wasn't that timely enough? Respectfully, I don't think it was and I will point in a related context to a judge, Amber, has decision for the circuit in the United States, to be Rose, which involves waiver of far stricter preservation rule in the context of suppression arguments, where a pro-se litigant failed to raise on a timely basis. The suppression argument that then was being raised on the field. And this court's opinion read, the Rose has offered a reason why he did not raise the issues before his suppression hearing. He has offered no explanation, other than that he was proceeding to say why he did not raise the issues after the hearing prior to this appeal. In this context, we conclude that Rose has not shown good cause for his failure to raise these suppression issues to the district court. That's USV Rose, 538 175, 185 I believe 186. And that's in a context suppression where there's an absolute waiver rule. It's not just for perjure, it's waiver. Here we're saying it's for perjure that should apply. The standard here should be planar and I think there's a good reason for that. A couple things. Yes, he's a pro-se, but he certainly have the wherewithal to object to the forms of questions. He objected the forms of questions posed by prosecutors during the course of the trial. But the next morning? But I mean, how? Nothing happened in the interview. I mean, how frequently does count? I mean, I recognize you, you're at Pellet Council, but with significant frequency during a course for trial. Council will come in and say, Ron would like to have a little conference yesterday, such and such happened. Having thought about it later in the day and overnight, I'd like to put on the record. And here, a Taviana representing himself comes in the next morning and says, first thing, and says what he said about the line of questioning. I mean, I don't think it's timely for Otabiano, but I would say it would be pretty close to rule 614b, if it was Council. Well, 614b though says it's the next available opportunity, and there were intervening recesses. There was even an intervening recess during the middle of cross-examination. My colleagues cross-spaned both the morning session and the afternoon session. There wasn't a break there. There's a lot of wiggle room in the two words available and opportunity. I understand that, and I appreciate that, Your Honor. Even if your honours believe that the issue was sufficiently preserved, whether he was profsair, whether it would be sufficiently preserved, even if he was counseled, and I respectfully, I think more needs to be done in part because the reason for the prompt objection requirement. Yes, you don't have to raise it in front of the jury because of the difficulties that could pose for anybody. But the need for a prompt objection is so that the judge can take appropriate timely, curative measures. And the judge, you know, by the next, the following morning, by my Council's onargument, any curative measures that could be taken the time it already gone, the only choice that that point was mistreated. I think the purpose of rule 614 is to put litigants on notice that they have reservations, that they have issues with the nature of the questions that the judge is posing, that they've got to raise them sufficiently timely, so the judge can do something about it

. Yes, he's a pro-se, but he certainly have the wherewithal to object to the forms of questions. He objected the forms of questions posed by prosecutors during the course of the trial. But the next morning? But I mean, how? Nothing happened in the interview. I mean, how frequently does count? I mean, I recognize you, you're at Pellet Council, but with significant frequency during a course for trial. Council will come in and say, Ron would like to have a little conference yesterday, such and such happened. Having thought about it later in the day and overnight, I'd like to put on the record. And here, a Taviana representing himself comes in the next morning and says, first thing, and says what he said about the line of questioning. I mean, I don't think it's timely for Otabiano, but I would say it would be pretty close to rule 614b, if it was Council. Well, 614b though says it's the next available opportunity, and there were intervening recesses. There was even an intervening recess during the middle of cross-examination. My colleagues cross-spaned both the morning session and the afternoon session. There wasn't a break there. There's a lot of wiggle room in the two words available and opportunity. I understand that, and I appreciate that, Your Honor. Even if your honours believe that the issue was sufficiently preserved, whether he was profsair, whether it would be sufficiently preserved, even if he was counseled, and I respectfully, I think more needs to be done in part because the reason for the prompt objection requirement. Yes, you don't have to raise it in front of the jury because of the difficulties that could pose for anybody. But the need for a prompt objection is so that the judge can take appropriate timely, curative measures. And the judge, you know, by the next, the following morning, by my Council's onargument, any curative measures that could be taken the time it already gone, the only choice that that point was mistreated. I think the purpose of rule 614 is to put litigants on notice that they have reservations, that they have issues with the nature of the questions that the judge is posing, that they've got to raise them sufficiently timely, so the judge can do something about it. Before damage or more damage is done, but even assuming that this is a preserved claim of error, and even assuming it's not just simply the ordinary, stinting substantially contributed to the verdict, but rather even the most stringent form of harmless error review, which is harmless beyond reasonable doubt, our position is the errors here, the abusive discretion or the laughs of judgment in posing these questions, was still harmless beyond reasonable doubt in light of the absolutely utterly overwhelming evidence of guilt. There's not a doubt in my mind, Judge Amber, as you said, if this case were to be tried 10 times, the outcome would be the same every single time. I also think in judging whether this rose level depriving him of a good... You're assuming there are no tax protesters on the jury? I think we would do our best to try to weed them out as it was, while I do, actually designed to do that. But putting that aside, judging whether there was a due process violation, you have to look at, or I would implore the court to look at the entirety of the judge's management of its trial. In the words of, of, of, of, of, Betty were aspects of the judge's trial management regrettable? Yes, but when you compare what this judge did, again, say what the judge did in Betty, where in Betty, from beginning to end, it comes across, at least from reading that opinion, the judge engaged in an unrelenting attack on at least one of the defendants in his council, Mr. Betty. This judge, been over backwards to issue trial subpoenas so that Mr. Taviano could bring in 13 different defense witnesses from far-flung locations in the country, who was it turned out offered marginally probive evidence if anything, but nonetheless the judge did that. The judge also not only cut short one trial day, but then the next Friday, before the defense case begins. Basic, Council's court that day gives Mr. Taviano that day off so he can better prepare for the presentation of his case and also to ensure that he would comply with the discovery order that the judge had issued prior trial requiring, setting the time tail for disclosure of defense exhibits. And even when Mr. Taviano flouted that and then produces on the stand the following Wednesday, a letter he clinging, a copy of letter he clings to have sent to the Secretary of the Treasury, the judge ultimately lets that evidence in rather than keep it out what the judge could have because of the violation of the discovery order. And so I think you have to judge what the judge, you have to judge what the judge did here. I think you made your point well. Thank you very much

. Before damage or more damage is done, but even assuming that this is a preserved claim of error, and even assuming it's not just simply the ordinary, stinting substantially contributed to the verdict, but rather even the most stringent form of harmless error review, which is harmless beyond reasonable doubt, our position is the errors here, the abusive discretion or the laughs of judgment in posing these questions, was still harmless beyond reasonable doubt in light of the absolutely utterly overwhelming evidence of guilt. There's not a doubt in my mind, Judge Amber, as you said, if this case were to be tried 10 times, the outcome would be the same every single time. I also think in judging whether this rose level depriving him of a good... You're assuming there are no tax protesters on the jury? I think we would do our best to try to weed them out as it was, while I do, actually designed to do that. But putting that aside, judging whether there was a due process violation, you have to look at, or I would implore the court to look at the entirety of the judge's management of its trial. In the words of, of, of, of, of, Betty were aspects of the judge's trial management regrettable? Yes, but when you compare what this judge did, again, say what the judge did in Betty, where in Betty, from beginning to end, it comes across, at least from reading that opinion, the judge engaged in an unrelenting attack on at least one of the defendants in his council, Mr. Betty. This judge, been over backwards to issue trial subpoenas so that Mr. Taviano could bring in 13 different defense witnesses from far-flung locations in the country, who was it turned out offered marginally probive evidence if anything, but nonetheless the judge did that. The judge also not only cut short one trial day, but then the next Friday, before the defense case begins. Basic, Council's court that day gives Mr. Taviano that day off so he can better prepare for the presentation of his case and also to ensure that he would comply with the discovery order that the judge had issued prior trial requiring, setting the time tail for disclosure of defense exhibits. And even when Mr. Taviano flouted that and then produces on the stand the following Wednesday, a letter he clinging, a copy of letter he clings to have sent to the Secretary of the Treasury, the judge ultimately lets that evidence in rather than keep it out what the judge could have because of the violation of the discovery order. And so I think you have to judge what the judge, you have to judge what the judge did here. I think you made your point well. Thank you very much. Thank you, Your Honor. Unless there are other questions I can address on my papers. Thank you. Matters just three very quick points. Mr. Coins stated in his comments that what matters is that justice is done. Actually, there's more than that. The Supreme Court's made clear that justice must also satisfy the appearance of justice and appearances matter. I do try criminal cases and particularly to juries, appearances matter. Juries know that defense counsel is a higher gun. They know that government counsel is a higher gun. The district court judge sits above it all almost as a god to jurors. So when you have a case like this one where the judge repeatedly, excessively, pervasively, in a partisan fashion. Well, in a three week trial, I mean, on this particular area, it was a fairly lengthy questioning, but in the course of a three week trial, what portion of the time was actually spent on this objectionable questioning? The most critical part of the trial. The trial where the defendant got to speak to himself directly to the jury and explain this is why I'm not guilty. Well, but the issue was primarily relating to his attempts to get into law school and passing himself off as having a legal background as that correct. Right, which went directly to the defendant's credibility and whether the jury should believe it. I do. And if this case involved a credibility battle in such a way that the question for the jury to decide was, did a tabiano commit the crime or did somebody else commit the crime? And the government brings in cooperating witness Smith, incorporating witness Smith comes in and says, a tabiano did it

. Thank you, Your Honor. Unless there are other questions I can address on my papers. Thank you. Matters just three very quick points. Mr. Coins stated in his comments that what matters is that justice is done. Actually, there's more than that. The Supreme Court's made clear that justice must also satisfy the appearance of justice and appearances matter. I do try criminal cases and particularly to juries, appearances matter. Juries know that defense counsel is a higher gun. They know that government counsel is a higher gun. The district court judge sits above it all almost as a god to jurors. So when you have a case like this one where the judge repeatedly, excessively, pervasively, in a partisan fashion. Well, in a three week trial, I mean, on this particular area, it was a fairly lengthy questioning, but in the course of a three week trial, what portion of the time was actually spent on this objectionable questioning? The most critical part of the trial. The trial where the defendant got to speak to himself directly to the jury and explain this is why I'm not guilty. Well, but the issue was primarily relating to his attempts to get into law school and passing himself off as having a legal background as that correct. Right, which went directly to the defendant's credibility and whether the jury should believe it. I do. And if this case involved a credibility battle in such a way that the question for the jury to decide was, did a tabiano commit the crime or did somebody else commit the crime? And the government brings in cooperating witness Smith, incorporating witness Smith comes in and says, a tabiano did it. And then a tabiano takes the stand and says, I didn't do it. Jones did it. Case is going back for a new trial. We don't know. We cannot, in that case, say it's harmless error. How do you get around the fact here that the credibility isn't a tabiano saying, I didn't do it. As I read the record, now tell me if I'm misinterpreting the record. As I see the record, a tabiano saying, oh, I didn't intend to violate any laws. And that is countermanded with a tabiano on a tape talking about violating the law and copious amounts of documentary evidence and other witness testimony talking about exactly how we violated the law. So I'm not sure you have that sort of conflict like the conflict that you would have in the hypothetical I presented. So why am I wrong on that? Okay, so I respect that I think your honor is wrong because your honor presented one type of scenario where credibility is at issue. And this is another scenario where credibility is at issue because in white collar cases, it comes down to intent. And the defendant by taking the stand put that issue squarely in the jury's lap to say, you should believe me. And that's why district courts cross examination on the issue of credibility is so devastating and critical to this appeal because that was a tabiano's defense. Sure, it was a three-week trial. But our tabiano's defense hinged on that on that period of time where he was presenting his case through direct examination and where ultimately he was cross examined repeatedly by the district court. And I know several of your honors have written not for publication opinions on this issue. And if you look at those, those are cases involving, you know, there were a handful of questions that were brief comments. That's not this case

. And then a tabiano takes the stand and says, I didn't do it. Jones did it. Case is going back for a new trial. We don't know. We cannot, in that case, say it's harmless error. How do you get around the fact here that the credibility isn't a tabiano saying, I didn't do it. As I read the record, now tell me if I'm misinterpreting the record. As I see the record, a tabiano saying, oh, I didn't intend to violate any laws. And that is countermanded with a tabiano on a tape talking about violating the law and copious amounts of documentary evidence and other witness testimony talking about exactly how we violated the law. So I'm not sure you have that sort of conflict like the conflict that you would have in the hypothetical I presented. So why am I wrong on that? Okay, so I respect that I think your honor is wrong because your honor presented one type of scenario where credibility is at issue. And this is another scenario where credibility is at issue because in white collar cases, it comes down to intent. And the defendant by taking the stand put that issue squarely in the jury's lap to say, you should believe me. And that's why district courts cross examination on the issue of credibility is so devastating and critical to this appeal because that was a tabiano's defense. Sure, it was a three-week trial. But our tabiano's defense hinged on that on that period of time where he was presenting his case through direct examination and where ultimately he was cross examined repeatedly by the district court. And I know several of your honors have written not for publication opinions on this issue. And if you look at those, those are cases involving, you know, there were a handful of questions that were brief comments. That's not this case. And where the district court judges excessive involvement in questioning the jury. Are those questions? Are those cases where we said the district judge erred or those cases where we said the district judges limited questioning was not a violation? It's even those are cases where the court held that limited questioning does not constitute, does not constitute a violation. Right. We'll hear if we're giving you the violation. But your adversary is giving you the violation. Sure, sure. But if the court goes back and looks at BD, if I were correctly, there were two defendants in BD. One, where there wasn't a violation, one there, where there was, or maybe it's the United States versus Noble, and they have them wrong. If you look at the second circuit case in Mizzili, which deals with this issue as to when a defendant puts his credibility to issue, whether it can constitute harmless error where the question is excessive. And I would urge the court to go look at that cases. This is a different case. I would agree. This is a different case. If the defendant does not testify and Judge Martinez examination of was limited to the defense witnesses, which is something we haven't even really discussed at issue. Then that wasn't preserved. We know that. But I'm saying all this issue is the judge's questioning of like to have the answer. Right. But that would be a different, that would be a different, truly different case

. And where the district court judges excessive involvement in questioning the jury. Are those questions? Are those cases where we said the district judge erred or those cases where we said the district judges limited questioning was not a violation? It's even those are cases where the court held that limited questioning does not constitute, does not constitute a violation. Right. We'll hear if we're giving you the violation. But your adversary is giving you the violation. Sure, sure. But if the court goes back and looks at BD, if I were correctly, there were two defendants in BD. One, where there wasn't a violation, one there, where there was, or maybe it's the United States versus Noble, and they have them wrong. If you look at the second circuit case in Mizzili, which deals with this issue as to when a defendant puts his credibility to issue, whether it can constitute harmless error where the question is excessive. And I would urge the court to go look at that cases. This is a different case. I would agree. This is a different case. If the defendant does not testify and Judge Martinez examination of was limited to the defense witnesses, which is something we haven't even really discussed at issue. Then that wasn't preserved. We know that. But I'm saying all this issue is the judge's questioning of like to have the answer. Right. But that would be a different, that would be a different, truly different case. Because then the defendant's witness, the defendant's testimony, I'm not putting it my apologies. The defendant's credibility would not, would not be an issue. But once the defendant takes the stand, it transforms the entire case. He has a cost to correct the percentage of the rule of law. The rule of law you want to establish is that in a case where the defendant's credibility is at issue, forget how it's defined, how, why it's an issue, but it is at issue that it's structural error for the judge to ask inappropriate questions. Here's the truth. I answer that. I would love for the court to hold that. But here's what I think the right decision is. In this case, where the district court judge is questioning goes on and on, on direct examination, on cross examination, on redirect examination, where it's directed at the defendant himself, where it became clear that the district court judge's own skepticism was, was communicated to the jury that at least in this case, to support, as the Supreme Court says, that justice has to satisfy an appearance of justice, that this court cannot let that conviction stand. Whether it takes another three weeks to try this defendant or not, that is not appropriate. And I'll finish with this. Your Honor asked an earlier attorney if he were writing the opinion, how would he write the opinion? If I were writing the opinion. She would write the opinion. She would write the opinion. If I would include all those pages from my brief and let a reasonable layperson read the page after page, it would take a three or four pages of Fed third or Fed third, whatever. And I don't believe a reasonable observer reading that testimony could think that this defendant got a fair trial and that's ultimately what matters. Thank you. Thank you, Mr

. Bremen. Thank you, Mr. Coin. I really thanks to both counsel for very well presented arguments. We'll take a matter of time