[00:00:00] Speaker 04:
Go ahead.

[00:00:01] Speaker 04:
James Thompson on behalf of Raymond Chow.

[00:00:05] Speaker 04:
This case involves the ineffective assistance of counsel at a number of different stages in the matter.

[00:00:13] Speaker 04:
And I think that really the key point that starts this off is with the third superseding indictment.

[00:00:19] Speaker 04:
Because in that indictment is when the case changed completely.

[00:00:22] Speaker 04:
Prior to this, it was really a money laundering and sell of alcohol and cigarettes, et cetera, case.

[00:00:29] Speaker 04:
But with the third indictment came the murder charge against Mr. Chow in the Lung situation and then the conspiracy to commit murder with respect to Kong and to some extent his girlfriend or paramour at the time, Chin, who was also killed.

[00:00:49] Speaker 04:
And at that point in time is when it really changed.

[00:00:52] Speaker 04:
And it is really at that point when things get where the ineffective assistance of counsel shows itself.

[00:00:59] Speaker 04:
Because the first thing that happened when the third superseding indictment got filed was that counsel wanted the opportunity to, or excuse me, counsel was given the opportunity to seek a continuance or to have a continuance granted in the matter because of the additional charges and the seriousness of those charges.

[00:01:18] Speaker 04:
And that was refused.

[00:01:20] Speaker 04:
And it was refused in a way in which it made no sense whatsoever.

[00:01:24] Speaker 03:
They gave him... So that does seem to be your strongest argument.

[00:01:30] Speaker 03:
I mean, I noticed you didn't talk about the, you know, the suppression of the wiretap evidence.

[00:01:37] Speaker 03:
And I was going to ask you, I mean, are there... Would any of those actually... Were there meritorious suppression arguments that could have been made?

[00:01:47] Speaker 04:
At least the accumulation of all of the exclusion motions and the other things that were done, yes, there would be a basis for it.

[00:01:55] Speaker 04:
Standing on its alone by itself, right?

[00:01:59] Speaker 04:
No, I don't think the wiretap itself would be there because there was other testimony.

[00:02:03] Speaker 04:
But the exclusion of the Kong and the Chin, if I can put them together, motion, that definitely should have been done.

[00:02:10] Speaker 04:
The thing about the continuance is that the AUSA at the time said, I've never seen counsel say that they're going to be ineffective if they go forward, but then at the same time say they want to go forward.

[00:02:25] Speaker 04:
And that was the turning point, because at that point, without getting the continuance, they could not litigate the Lung matter in terms of investigation and preparation, so that they could have impeached Mrs. Lung when she testified.

[00:02:39] Speaker 04:
They could have had other people come in and testify about the fact that Lee was a suspect from the San Francisco PD's office when they did the investigation.

[00:02:48] Speaker 04:
They didn't bring in any of that stuff, because they weren't ready, because that charge came late in the game.

[00:02:53] Speaker 03:
Instead of taking the continuous so I I'm with you that I mean it is that is the oddest choice That has been raised here But don't you still have to show that it would have had a material effect in the outcome and and I maybe you could address that because it seems like pretty overwhelming evidence of guilt and So I'm trying to figure out where the prejudice is and

[00:03:22] Speaker 04:
Right.

[00:03:23] Speaker 04:
I understand.

[00:03:24] Speaker 04:
And I think, you know, it's a matter of if there had been investigation, there would have been a situation where the... But how do we evaluate that?

[00:03:35] Speaker 03:
Because, I mean, you're actually asking... At that point, you're starting... We're already getting into a hypothetical question about whether it would have impacted it, and now you're, like, expanding that hypothetical to say, well, if we'd had more time, we could have come up with this and this and this, and that would have changed things.

[00:03:52] Speaker 03:
I mean, at some point, we're so far removed from the actual facts, it's sort of hard to evaluate where prejudice comes into play.

[00:04:01] Speaker 04:
But I really don't think it's removed because, you know,

[00:04:06] Speaker 04:
Imagine, not the world as John Lennon is saying, but imagine a trial.

[00:04:12] Speaker 04:
Imagine a trial without any opening statement that promised what was not produced by Mr. Sara.

[00:04:20] Speaker 04:
Imagine a trial without the two killings

[00:04:24] Speaker 04:
the Boston offense that was done, and the volunteer or asking for volunteers to do killing from the Chong case when Mr. Chow was asked about that during cross-examination.

[00:04:38] Speaker 04:
Because had there been a continuance and had counsel tried to litigate whether or not the Chong impeachment stuff could have come in, Mr. Chow would have been advised, if we go to trial and you testify, they are going to introduce two murders,

[00:04:54] Speaker 04:
the offense that occurred in Boston, and the fact that you volunteered or tried to get volunteers to do killings for you.

[00:05:01] Speaker 01:
So does your theory of prejudice on the continuance rest on other things that would have been done if given additional time so that it isn't just the continuance alone, it's sort of the continuance plus other things that were not done?

[00:05:16] Speaker 04:
That's correct.

[00:05:17] Speaker 04:
And so then it is, you know, a trial without the gory Kong Chen murder evidence, which had absolutely nothing to do with the Kong murder conspiracy.

[00:05:28] Speaker 04:
It occurred a year and a half later, committed by Wing Mo Wo Ma, which the government knew because they were prosecuting on the offense, and then allowed to go forward and that evidence never would have come in.

[00:05:42] Speaker 04:
It should have stopped at 2013 when the purported agreement between Mr. Lee and Mr. Chow occurred saying, yes, you should, you know, you should go ahead and go do it.

[00:05:52] Speaker 04:
even though there's later statements of Mr. Chow saying, no, I don't want you to do anything.

[00:05:58] Speaker 04:
It's been handled.

[00:05:59] Speaker 04:
Well, that only led a jury believe that, yeah, it was handled and he somehow could be involved in it because the government was not upfront about what role the Kong and Chin killings occurred.

[00:06:12] Speaker 04:
And I'll talk about that in a second.

[00:06:14] Speaker 04:
But imagine a trial without the testimony of an ill-prepared defendant who was only guided by the hand of an individual who had never tried a federal criminal case, who had never been on the panel, who had tried one drunk driving case.

[00:06:29] Speaker 04:
He was responsible for communicating with Mr. Chao.

[00:06:32] Speaker 04:
He couldn't possibly advise him of these things.

[00:06:35] Speaker 04:
He didn't know about these things himself.

[00:06:38] Speaker 04:
Imagine a trial with counsel that read all of the discovery and was prepared for the government's case.

[00:06:45] Speaker 04:
Imagine a trial with the testimony of at least 17 witnesses who didn't testify because the proffers the defense counsel gave to the court were insufficient.

[00:06:58] Speaker 04:
Imagine a trial with a continuance of the trial that would have allowed investigation, preparation, and litigation.

[00:07:07] Speaker 04:
Imagine a trial with a primary lawyer having tried more than a single case.

[00:07:14] Speaker 04:
Imagine a trial without the switch of defenses from beatific, as the defense said, to really what was ultimately proved beastific.

[00:07:26] Speaker 04:
Because that's what happened because of this.

[00:07:29] Speaker 04:
And imagine if the trial was done the way it should have been done to a jury that listened to all of the evidence, asked 10 multiple questions about the evidence, requested testimony read back of key witnesses, and spent three days deliberating the case with the evidence that was presented.

[00:07:55] Speaker 03:
As to your first litany, there's some speculation there.

[00:08:02] Speaker 03:
I mean, that's the problem, is you're saying, well, imagine this.

[00:08:04] Speaker 03:
And it's not clear to me how probabilistic any one of those really were, even if you'd had a continuance.

[00:08:11] Speaker 03:
So that's one problem we've got to deal with.

[00:08:13] Speaker 03:
But then you say,

[00:08:15] Speaker 03:
And we also had a jury who paid close attention to this and that seems to hurt you because they did pay close attention to this.

[00:08:23] Speaker 03:
They looked at the evidence, they scrutinized it and they said the evidence was overwhelming.

[00:08:28] Speaker 04:
It doesn't hurt at all because what they did is spent three days on a case that wasn't presented.

[00:08:34] Speaker 04:
There was no defense tendered up in the lung murder.

[00:08:41] Speaker 04:
Mrs. Lung wasn't impeached.

[00:08:42] Speaker 04:
Clifton Lung wasn't called to testify.

[00:08:45] Speaker 04:
There was no impeachment of CAM by Wu, who said, look, he's talking about events that occurred.

[00:08:53] Speaker 04:
I was never at those events.

[00:08:55] Speaker 04:
He's talking about a getaway driver.

[00:08:57] Speaker 04:
That's not true.

[00:08:58] Speaker 04:
There is no discussion at all about the Golden Dragon lease, which Mrs. Lung says to the officers that, I believe, is the reason that this happened.

[00:09:09] Speaker 04:
That lease was involved with Mr. Lee, not Mr. Chow.

[00:09:14] Speaker 04:
Defense counsel never brought out any of that, and it was in the evidence.

[00:09:19] Speaker 04:
So you can imagine what that jury, who deliberated and took strongly to those issues, would have done had there been the promise that Mr. Sara made, which is, in opening statement, we're going to present you the evidence of Mr. Lee and his involvement in this case, and how it would have made a difference, and how my client is innocent.

[00:09:40] Speaker 04:
and not a single word, not a drop.

[00:09:43] Speaker 04:
And if you look at his argument in total, if you look at it, the defense is only this.

[00:09:51] Speaker 04:
Cooperators lie.

[00:09:52] Speaker 04:
Cooperators will do anything.

[00:09:54] Speaker 04:
Cooperators will sell the soul of their mother.

[00:09:58] Speaker 04:
At the same time, he puts on his client

[00:10:03] Speaker 04:
to testify and is impeached with the Chang evidence where Chow was a cooperator.

[00:10:12] Speaker 04:
So the only defense he had, as weak as it was,

[00:10:16] Speaker 04:
either didn't work at all or undermined his own client's testimony.

[00:10:22] Speaker 03:
I hear you.

[00:10:23] Speaker 03:
And we hear these arguments all the time because obviously it's very easy to Monday quarterback the Sunday game when you lose.

[00:10:32] Speaker 03:
You're like, well, you did it wrong.

[00:10:33] Speaker 03:
You didn't have the game plan that would win.

[00:10:35] Speaker 03:
And so if we had done this and this and this, we would have had a better chance of winning.

[00:10:39] Speaker 03:
Well, you're right.

[00:10:40] Speaker 03:
You would have had a better chance of winning.

[00:10:42] Speaker 03:
because we know in hindsight that you lost.

[00:10:46] Speaker 03:
But how do we evaluate?

[00:10:48] Speaker 03:
I mean, you've got to present to us a compelling reason that the jury would have found something differently.

[00:10:54] Speaker 03:
And I know that's what you're trying to do here.

[00:10:57] Speaker 03:
But it's not clear to me that any of these defenses that perhaps would have given him a better chance of getting an acquittal would have actually been successful.

[00:11:10] Speaker 04:
But the measure is not for you to know that it would have won.

[00:11:14] Speaker 03:
No, I think the standard is important here.

[00:11:19] Speaker 03:
I think it is that we think that it has to have a reasonable chance that a jury would have come to a different result.

[00:11:24] Speaker 04:
That's right.

[00:11:25] Speaker 03:
And that's what I'm struggling with.

[00:11:27] Speaker 04:
And I need to show you by a preponderance of the evidence that that's likely.

[00:11:32] Speaker 04:
It's the lowest standard there is.

[00:11:34] Speaker 04:
I understand deference.

[00:11:36] Speaker 04:
I'm a trial lawyer.

[00:11:37] Speaker 04:
I understand deference.

[00:11:39] Speaker 04:
And I understand looking at it, you know, back behind the time period.

[00:11:43] Speaker 04:
But here you also have two declarations from counsel that set out in detail what it is that they did wrong, why they weren't prepared, what they would have done that was different.

[00:11:56] Speaker 04:
Now, you can't possibly imagine what a jury would have done, but you can certainly say, you know, God, the guy didn't even get a defense on the lung show, and he didn't even, and he had evidence introduced of these two gruesome killings in Mendocino County that had nothing to do with this case.

[00:12:17] Speaker 02:
As to the two killings, Tong's counsel

[00:12:22] Speaker 02:
actually relied on the gruesomeness of those killings.

[00:12:27] Speaker 02:
You couple that with the fact that the government repeatedly said he is not charged with being involved in those killings.

[00:12:37] Speaker 02:
I don't understand how we can conclude from those two things that the jury could have

[00:12:45] Speaker 02:
I mean, the whole point was that you take the couple of the fact that the government says we're not charging him with being involved in those, and then you couple that with his own counsel's reliance on the gruesomeness of them to say that's something that this community leader was not involved with.

[00:13:02] Speaker 02:
That's a plausible strategy for his counsel to have

[00:13:07] Speaker 02:
pursued with those.

[00:13:09] Speaker 04:
It's only plausible because he didn't view a motion to exclude it.

[00:13:14] Speaker 04:
I want to reserve some time, so if I maybe reserve a minute and a half.

[00:13:17] Speaker 03:
Yeah, if we take you over, we'll give you more time.

[00:13:19] Speaker 04:
Okay.

[00:13:22] Speaker 04:
They filed a motion to exclude the evidence prior to the third indictment.

[00:13:27] Speaker 04:
That was not even ruled on.

[00:13:28] Speaker 04:
It was deferred because there were no charges.

[00:13:31] Speaker 04:
They then get the third indictment.

[00:13:32] Speaker 04:
They don't ask for a continuance and they move forward in the trial.

[00:13:36] Speaker 04:
They don't file another motion to exclude the evidence of Kong and Chen.

[00:13:41] Speaker 04:
They get into the trial, and the trial goes on.

[00:13:44] Speaker 04:
At the end, after you haven't done anything about it, you've got to make the best of what you've got.

[00:13:50] Speaker 02:
I guess what I'm struggling with is if the jury has shown evidence of very gruesome murders, and they're repeatedly told these murders, Chong is not charged with being involved in these murders, then

[00:14:06] Speaker 02:
I mean, are we supposed to assume that the jury just ignores that?

[00:14:10] Speaker 04:
But they weren't repeatedly charged.

[00:14:13] Speaker 02:
In November 9, 2015... Mr. Chong is not charged with being involved in the actual murder of Kong.

[00:14:20] Speaker 04:
On November 9, 2015, in the opening statement that the U.S.

[00:14:24] Speaker 04:
Attorney gave, he talked a little about you'll hear Raymond Chao with conversations with Andy Lee.

[00:14:30] Speaker 04:
Andy Lee goes back to Raymond Chao and says, hey, this Jim Cat Tong thing, you still want it done.

[00:14:36] Speaker 04:
Raymond says it's been handled.

[00:14:38] Speaker 04:
Kong, you will hear, eventually ends up dead in the front of a minivan in Mendocino County.

[00:14:44] Speaker 02:
He does say that.

[00:14:45] Speaker 02:
He later says he's not being charged at the actual murder.

[00:14:47] Speaker 02:
Later on, he says, as I mentioned previously, there should be no confusion on anybody's part.

[00:14:52] Speaker 02:
The indictment does not charge Chao with committing the September 2013 murder of Kong or his wife, or with conspiring or participating in that murder.

[00:15:03] Speaker 02:
And you're asking us to just assume, I guess, that the jury ignored that?

[00:15:08] Speaker 04:
If I can finish, I think I can answer that.

[00:15:12] Speaker 04:
And then that's the statement that's made.

[00:15:14] Speaker 04:
He's killed in October 2013.

[00:15:17] Speaker 04:
And then you'll hear that in March 24, arrests were made.

[00:15:20] Speaker 04:
Search warrants were executed.

[00:15:21] Speaker 04:
Charges were brought, encompassing all of this activity.

[00:15:24] Speaker 04:
And that brings us to where we are sitting here today.

[00:15:28] Speaker 04:
That's the opening statement.

[00:15:29] Speaker 04:
That's the only thing that they say about Chong and

[00:15:32] Speaker 04:
and Kong, Chen and Kong.

[00:15:34] Speaker 04:
That's it.

[00:15:35] Speaker 04:
They don't say, and he's not charged with it, and that his conspiracy is over or anything else.

[00:15:41] Speaker 04:
57 days later, it comes up again.

[00:15:45] Speaker 04:
And it comes up, and it's actually into some 22 pages into the argument that's first given.

[00:15:52] Speaker 04:
And that's when it starts with not what the US attorney gave in his 28-J motion, because the full statement reads this.

[00:16:01] Speaker 04:
And I should clarify here, in case there's any confusion about this, and then talks a little bit about the Kong situation.

[00:16:10] Speaker 04:
87 pages later in the argument, he says, there should be no confusion on anybody's part.

[00:16:17] Speaker 04:
If it is so clear, why does the US attorney have to stand up and tell the jury?

[00:16:23] Speaker 02:
Just to be clear, so your view is that notwithstanding those two

[00:16:27] Speaker 02:
those two statements that the US attorney that are pretty clear statement saying he's not charged with the that the jury

[00:16:34] Speaker 02:
Your argument depends on the fact that the jury nonetheless concluded that he was involved with those murders?

[00:16:42] Speaker 04:
What I'm saying is that there was at no time during the trial what this is made exceedingly clear in the argument.

[00:16:51] Speaker 04:
And then the argument, which it's done two more times, one time 97 pages and another two pages later, where they say, look, no confusion here.

[00:16:59] Speaker 04:
We want you to know he's not charged with your murders.

[00:17:03] Speaker 04:
But the language is, as far as the evidence showed.

[00:17:10] Speaker 04:
Aha.

[00:17:11] Speaker 04:
So now, a jury's given an instruction.

[00:17:14] Speaker 04:
The words of that person doesn't mean a thing.

[00:17:17] Speaker 04:
The words of that person doesn't mean a thing.

[00:17:20] Speaker 04:
There's no instruction given.

[00:17:22] Speaker 04:
There is no stipulation made.

[00:17:24] Speaker 04:
There is no evidence presented that he did not have anything to do with those killings and they should have because AUSA, for instance, says at some point in time, we put it on because they didn't object.

[00:17:39] Speaker 02:
You said there's no evidence provided that he did not have anything to do with those killings.

[00:17:45] Speaker 02:
But the prosecution literally said, we have not charged him, the indictment is not charging him with committing the murder or with conspiring or participating in the murder.

[00:17:55] Speaker 02:
So why would there be any evidence one way or the other?

[00:17:57] Speaker 02:
There's no need for the defense to put on that evidence because the prosecution is just claiming that he's involved in it.

[00:18:06] Speaker 04:
Then what does the jury do with it?

[00:18:08] Speaker 04:
Why did we get all that evidence as we sat back and deliberated for three solid days?

[00:18:14] Speaker 04:
Why did we get all the evidence of Colin Chen if he didn't have anything to do with it?

[00:18:18] Speaker 04:
And the USA said, as the evidence showed.

[00:18:23] Speaker 04:
Ah, so they have other evidence that they didn't show?

[00:18:25] Speaker 04:
And there's another statement in there by the US attorney at the very end where he says,

[00:18:31] Speaker 04:
The government has not alleged that Kong was killed.

[00:18:34] Speaker 02:
The reason that the jury got that evidence is because it's plausible that his counsel thought that showing the gruesomeness of these murders made it seem like maybe they were killed because of, you know, there was a robbery or something like that.

[00:18:54] Speaker 02:
And if you couple that with the government conceding that Chao wasn't involved in it, then you could understand why the defense counsel might think it's actually helpful to show that there's horrible stuff going on that Chao has nothing to do with, that the government's acknowledging he has nothing to do with.

[00:19:08] Speaker 04:
He doesn't make that decision until he does his argument.

[00:19:14] Speaker 04:
You know, if he'd made the decision early on saying, yeah, I want the Kong and Chen evidence coming in because I'm going to show that that was really done by somebody in a brutal fashion, that's a 2014 crime or 2013 crime.

[00:19:28] Speaker 04:
He's charged with a crime that ends in 2012.

[00:19:33] Speaker 04:
So they're not connected.

[00:19:36] Speaker 04:
They wouldn't have been introduced.

[00:19:37] Speaker 04:
And the last words are, they are clearly leads that are being pursued.

[00:19:43] Speaker 04:
But it's arguing against an argument we never made.

[00:19:47] Speaker 04:
So the jury is left to think, aha, there are charges out there.

[00:19:52] Speaker 04:
We don't know, and we're told not to trust him and not to trust him to look at the evidence.

[00:19:57] Speaker 04:
And dang, if we don't have some of the most gory, gruesome photographs of a murder that had nothing to do with anybody.

[00:20:04] Speaker 03:
I don't want to interrupt your role, but do you want to reserve your five minutes over?

[00:20:08] Speaker 03:
Yes, please.

[00:20:09] Speaker 03:
Thank you.

[00:20:35] Speaker 00:
Good morning, Your Honors, and may it please the court.

[00:20:37] Speaker 00:
Ross Mazur on behalf of the United States.

[00:20:41] Speaker 00:
The defendant has not met his burden to show either prejudice or deficient performance under the objective standard for ineffective assistance.

[00:20:51] Speaker 00:
Let me start with what I think are the key points raised by defense counsel.

[00:20:54] Speaker 00:
First, the continuance, the decision not to seek a continuance.

[00:20:58] Speaker 00:
Second, not moving to exclude evidence.

[00:21:01] Speaker 03:
I mean, the continuance does seem to be problematic.

[00:21:04] Speaker 03:
At least in the sense of, it's hard to understand what the strategic decision would have been not to seek a continuance when the third indictment came down.

[00:21:15] Speaker 03:
I mean, you would agree with that, right?

[00:21:17] Speaker 03:
Or do you think, no, it was not substandard?

[00:21:22] Speaker 00:
I don't think it was substandard at all.

[00:21:27] Speaker 00:
In fact, even in Mr. Briggs' declaration, he gives us the strategic considerations.

[00:21:34] Speaker 00:
He said there were discussions among the defense team, internal discussions, that if they delayed additional

[00:21:41] Speaker 00:
at that time.

[00:21:57] Speaker 00:
course the government would have found additional evidence and possibly more cooperators.

[00:22:02] Speaker 00:
So even in Briggs's declaration he acknowledges that the decision not to seek a continuance was strategic and we know that under Strickland strategic decisions are virtually unchallengeable.

[00:22:13] Speaker 00:
Now it may be that the defense would have gotten some benefit from having that additional time and it's easy to say that in hindsight

[00:22:20] Speaker 00:
But at the time, the defense was weighing that potential benefit against the risk that this other evidence would come forward.

[00:22:27] Speaker 01:
I want to make sure I understand the timeline.

[00:22:29] Speaker 01:
After the third superseding indictment was filed and added the charges, did the government itself seek a continuance as well at any point?

[00:22:40] Speaker 00:
No, Your Honor.

[00:22:43] Speaker 00:
The government did not seek a continuance.

[00:22:46] Speaker 00:
And Mr. Briggs, in the thorough colloquy with the court,

[00:22:50] Speaker 00:
correctly stated that after reviewing the discovery, the case turned on cross-examining cooperators, not on any forensic evidence that might require continuance for the defense to retain an expert witness.

[00:23:05] Speaker 00:
The court addressed Mr. Chao specifically, and he assured the court

[00:23:09] Speaker 00:
that he absolutely wanted to proceed without a continuance and that he understood the significance of the third superseding indictment that added the murder and the murder conspiracy charge.

[00:23:20] Speaker 00:
And of course, the defense already knew about the murders.

[00:23:23] Speaker 00:
They didn't learn about that for the first time in the superseding indictment, which is exactly why they had moved in lemonade to exclude references to the murder and the murder conspiracy before those were actually part of the case.

[00:23:39] Speaker 00:
Let me move on to the second point that the defense counsel stressed just now, which was the decision not to move to exclude evidence of the actual murder of Jim Tak Kong and his romantic partner Cindy Chen.

[00:23:58] Speaker 00:
So just to be clear, the challenged evidence was that about 18 months after the end of the charged conspiracy,

[00:24:07] Speaker 00:
Kang and Chen were murdered by Wing Wil Ma, a man with no connection to Mr. Chow, up in Mendocino, over an unrelated marijuana operation.

[00:24:19] Speaker 00:
Why would the defense want to exclude that?

[00:24:22] Speaker 00:
As Judge Van Dyke, you know, mentioned in his question, the decision for the defense to focus on that was absolutely strategic.

[00:24:33] Speaker 00:
Mr. Sarah argued in both his opening and his closing

[00:24:37] Speaker 00:
that Kong was killed by someone for unrelated reasons, that the actual murder was separate from the murder conspiracy.

[00:24:47] Speaker 00:
In fact, he focused on the actual murder almost to the exclusion of the conspiracy to try to distract from it, or maybe for the jury to ask themselves, why were we here prosecuting the man who didn't kill

[00:25:02] Speaker 00:
The evidence of the murders were used strategically.

[00:25:09] Speaker 00:
In any event, there was no prejudice.

[00:25:11] Speaker 00:
The government told the jury at least four times in closing argument that Mr. Chao was not charged with and there was no evidence that he was involved with the actual murders.

[00:25:22] Speaker 00:
In fact, to respond to a point made by defense counsel, two of those statements came in the government's rebuttal argument, probably to respond to what Mr. Sara had said in closing when he focused on the actual murders.

[00:25:38] Speaker 00:
So in other words, in rebuttal, the government had to say, despite Sara's focus on the murders, what you're here to deliberate about is the murder conspiracy.

[00:25:51] Speaker 00:
And, you know, as to defense counsel's suggestion that the government, you know, suggested an opening statement that Chao had committed the murders, that's just not true.

[00:26:00] Speaker 00:
The openings both on the government side and the defense side told exactly the same story, which was that using the same evidence, just with different emphasis, which was that Chao had agreed and entered into a conspiracy to have Kong murdered because they were rivals for the leadership of Hop Singh.

[00:26:19] Speaker 00:
that Chao called off the conspiracy because he realized that once he publicly withdrew his support for Kang and kicked him out of Hapsing, that Kang owed a lot of people money, he had a lot of other enemies who would do the job for him.

[00:26:35] Speaker 00:
The government introduced evidence, recorded conversations, where Chao was talking to Jordan and learning about the murder in real time.

[00:26:44] Speaker 00:
He doesn't even get all the details right because he was just informed about this.

[00:26:47] Speaker 00:
and says, I knew this would happen when I called off the hit.

[00:26:53] Speaker 00:
I knew he had other enemies that would take care of this.

[00:26:56] Speaker 00:
And the transcript of that conversation is included at 3SER 393 to 395.

[00:27:02] Speaker 02:
One of the arguments is the inexperience of his counsel generally.

[00:27:13] Speaker 02:
which if I recall correctly, I read the opening brief like, wow, these guys do really seem inexperienced.

[00:27:17] Speaker 02:
And I read the government's brief, it's like, well, no, he had a really, really experienced counsel.

[00:27:21] Speaker 02:
But it does seem like that counsel's involvement in the case, and I forget his name, but some really experienced sort of the lead person was involved, heavily involved, it sounded like, and then wasn't very involved for part of the case and then maybe involved later.

[00:27:37] Speaker 02:
What do we do with that?

[00:27:40] Speaker 02:
The fact that other than that person whose involvement was

[00:27:44] Speaker 02:
on again, off again a little bit, at least according to their allegations.

[00:27:48] Speaker 02:
The rest of his team, defense team, seems pretty inexperienced, and one of them had a drug problem or something like that.

[00:27:59] Speaker 00:
Judge Van Duck, I wouldn't quite agree with the characterization that lead counsel Tony Serra, his involvement was on again and off again.

[00:28:06] Speaker 00:
He spearheaded the first two months of pretrial litigation, and then it's true, he turned over primary responsibility

[00:28:13] Speaker 00:
for pretrial litigation to Mr. Briggs, who was relatively inexperienced, though he had another attorney and some support staff working with him and helping him.

[00:28:23] Speaker 00:
But Mr. Serra was the lead attorney at trial.

[00:28:27] Speaker 00:
He conducted the defense opening.

[00:28:30] Speaker 00:
the defense closing argument.

[00:28:32] Speaker 00:
He cross-examined three of the four cooperating witnesses.

[00:28:35] Speaker 00:
He conducted most of the trial.

[00:28:40] Speaker 00:
I think the record shows that Mr. Serra was a nationally recognized attorney, and even the district court, who had presided over the entire proceedings, mentioned toward the close of the case that he had seen Mr. Serra perform consistent with his reputation, and moreover that there was nothing

[00:28:59] Speaker 00:
any of the defense attorneys could have done, that would have changed the outcome of the case.

[00:29:05] Speaker 00:
I think the last thing that defense counsel just focused on was Mr. Chao's decision to testify.

[00:29:12] Speaker 00:
But the claim there is that if Mr. Chao had not lied under oath, then he wouldn't have been impeached with some of his prior statements.

[00:29:22] Speaker 00:
That claim is foreclosed as the prejudice by this court's decision in United States v. Day

[00:29:29] Speaker 00:
And this case is actually stronger than Day because while Day foreclosed an ineffective assistance claim on prejudice, here there was no deficient performance because an attorney doesn't have an affirmative obligation to advise their client not to commit perjury.

[00:29:44] Speaker 00:
That's part of the oath.

[00:29:45] Speaker 00:
that any witness swears in testifying.

[00:29:49] Speaker 00:
And it's also worth noting that in his own declaration, Mr. Chao said that he discussed his criminal past with Mr. Sara in preparing to testify.

[00:29:59] Speaker 03:
I thought his argument was a little more nuanced than that, that wasn't that tied to the continuance to say, if it's out of continuance, there would have been more time to flesh these things out.

[00:30:10] Speaker 03:
I mean, there's still a problem.

[00:30:12] Speaker 03:
You've got a whole chain of events

[00:30:15] Speaker 03:
or somewhat speculative as to what would have happened in this alternative alternate universe.

[00:30:21] Speaker 03:
But I didn't think he was just saying, oh, it was deficient because lied.

[00:30:27] Speaker 03:
I thought it was tied to the failure to seek a continuance.

[00:30:32] Speaker 03:
Am I wrong about that?

[00:30:34] Speaker 00:
I didn't read those two things as necessarily tied, but it wouldn't change the outcome.

[00:30:38] Speaker 00:
The continuance would have given the defense more time.

[00:30:41] Speaker 00:
But it was Mr. Sarah who conducted a three-day direct examination of Mr. Chow.

[00:30:47] Speaker 00:
And Mr. Sarah submitted a two- or three-page declaration for the 2255 motion.

[00:30:54] Speaker 00:
And he never said that he needed more time.

[00:30:56] Speaker 00:
He prepared Mr. Chow to testify.

[00:31:00] Speaker 00:
Mr. Chow, in his declaration, said that he discussed his criminal past with Mr. Sarah.

[00:31:09] Speaker 00:
the decision to seek a continuance wouldn't have any effect on his testimony.

[00:31:16] Speaker 00:
I think it's worth noting that I think defense counsel just acknowledged the motion to suppress would not have been effective.

[00:31:23] Speaker 00:
With respect to Pius Lee, the other suspect, Mr. Sarah elicited a trial and then emphasized in closing arguments the three main points, which were that Lee was with,

[00:31:37] Speaker 00:
Leung at the time of his death, that Lee had a financial dispute with him over a restaurant, and that Lee immediately fled the country and never came back.

[00:31:46] Speaker 00:
So Mr. Serra was able to make all of the points showing that Lee was an alternative suspect.

[00:31:55] Speaker 00:
I think, you know, prejudice, just closing on this, prejudice is especially unlikely in this case for two reasons.

[00:32:01] Speaker 00:
One is that the bulk of the evidence came in through recorded conversations, which were indisputably admissible.

[00:32:06] Speaker 00:
And second, because there were four cooperating witnesses and the principle points impeaching their credibility were brought out on direct and on cross almost ad nauseum.

[00:32:19] Speaker 00:
One is that all four of them had lengthy, extensive

[00:32:23] Speaker 00:
criminal records, some of which included cold-blooded murders, and second, that all of them were testifying in the hope of leniency in their own cases.

[00:32:32] Speaker 00:
In opening, the government counsel even previewed to the jury, you're not going to like these witnesses.

[00:32:37] Speaker 00:
They're not good people.

[00:32:39] Speaker 00:
So the additional few points that counsel argues could have been used to impeach those witnesses couldn't possibly have made any difference.

[00:32:49] Speaker 01:
I do have a question.

[00:32:50] Speaker 01:
I want to go back to my question about the timeline on the continuance, because I had read this.

[00:32:57] Speaker 01:
I was confused by the long footnote in Judge Breyer's order about what happened with the continuance, and he references the government subsequently moved for a continuance.

[00:33:10] Speaker 01:
That motion appears to be

[00:33:13] Speaker 01:
a motion on the 14th and then it's denied on the 15th, which is the day also of the third superseding indictment.

[00:33:23] Speaker 01:
Do I have that correct?

[00:33:26] Speaker 00:
Your Honor, I'm sorry, but I'm not sure about that.

[00:33:28] Speaker 01:
What was the basis of the government's motion filed right before, for continuance, right before the third superseding indictment was filed?

[00:33:36] Speaker 00:
I'm sorry, I don't have the answer to that.

[00:33:38] Speaker 00:
It was denied the next day.

[00:33:39] Speaker 00:
I know the government understood after the third superseding indictment that the defense had a right to a continuance if they wanted one.

[00:33:46] Speaker 01:
Both the court and the government... Was the government itself seeking one, saying it needed more time in light of...

[00:33:52] Speaker 01:
the third superseding.

[00:33:55] Speaker 01:
Was that the basis?

[00:33:56] Speaker 01:
Is that what he's discussing in this footnote?

[00:33:58] Speaker 00:
I don't believe the government ever moved for a continuance after the third superseding indictment.

[00:34:03] Speaker 00:
I'm not sure about the reference to a motion for a continuance just prior to that.

[00:34:08] Speaker 00:
That's possible.

[00:34:09] Speaker 00:
I don't recall offhand, but it certainly wouldn't impact the defendant's claim that the failure to

[00:34:15] Speaker 00:
Sika continuance was prejudicial.

[00:34:17] Speaker 01:
Mr. Docket shows a 1065 emergency motion to continue jury selection and trial date by USA as to Kwok Chung Chow.

[00:34:26] Speaker 01:
And then that's apparently the motion that Judge Breyer is referring to in this long footnote that he says he denied on the 15th.

[00:34:37] Speaker 00:
You know, Your Honor, I just don't remember the basis for that motion.

[00:34:40] Speaker 00:
It's possible the government was seeking it because it was bringing the third superseding indictment.

[00:34:47] Speaker 01:
Judge Breyer seemed to think it was relevant to the tactical issue.

[00:34:50] Speaker 01:
That's why I'm raising this.

[00:34:54] Speaker 01:
I'm sorry, would you mind repeating that?

[00:34:55] Speaker 01:
Judge Breyer seemed to think it was relevant to the first prong of Strickland, whether this was a reasonable tactical decision, because I read this footnote as saying, well,

[00:35:03] Speaker 01:
The government came in wanting a continuance, and so that sort of suggested that, you know, reasonable trial counsel would say, let's jam the government.

[00:35:12] Speaker 00:
Absolutely, Your Honor, and I'm sorry I misunderstood your question earlier.

[00:35:15] Speaker 00:
In fact, Judge Breyer, who rested the denial of the 2255 on the prejudice prong alone, did on a few occasions comment on deficient performance.

[00:35:25] Speaker 00:
And when it came to the continuance, this was one area where he said,

[00:35:28] Speaker 00:
Council, not only was there no prejudice, but Council were not deficient in not seeking a continuance.

[00:35:34] Speaker 00:
That was a reasonable strategic decision.

[00:35:36] Speaker 00:
So I absolutely agree with your point, Your Honor.

[00:35:40] Speaker 00:
Unless there are any further questions, the government would ask you to affirm the judgment.

[00:35:44] Speaker 00:
Thank you.

[00:35:45] Speaker 03:
We'll give you two minutes for rebuttal.

[00:35:54] Speaker 01:
Thank you.

[00:35:54] Speaker 01:
Can you clarify this issue about what happened with the government's request for a continuance right around the time of the third superseding indictment?

[00:36:03] Speaker 04:
I don't know exactly what the details were about it but I know that it was offered as well to the defense and the court said if you want it of course you can have it.

[00:36:12] Speaker 04:
I can't give you the details of that at this point in time.

[00:36:16] Speaker 03:
What about the argument that was made that there were actually they were worried that a continuance would have helped the government I mean whether that was the basis for the continuance or not there does seem to be a Declaration that suggests that that was a consideration and if that was a consideration that

[00:36:33] Speaker 03:
then it may not be deficient performance.

[00:36:37] Speaker 04:
The government didn't need a single additional witness.

[00:36:41] Speaker 04:
When they went to that grand jury and got that third superseding indictment, they used each one of those cooperators.

[00:36:47] Speaker 04:
And they came in and they testified, and the government didn't break

[00:36:52] Speaker 04:
water for a second about going forward, and they put on the same case as they would have.

[00:36:59] Speaker 04:
The only one that would have benefited from a continuance was Mr. Chao, because counsel then could have done things such as explain to him about the fact that if you go to trial now and you testify,

[00:37:12] Speaker 04:
And we don't litigate the Chong discovery.

[00:37:15] Speaker 04:
The government is going to impeach you with one or two murders and the trip to Boston, et cetera.

[00:37:20] Speaker 04:
And Chow would have said, yes, fine, then let's continue it.

[00:37:23] Speaker 04:
Tony Serra had a limited role in the case up until trial.

[00:37:27] Speaker 04:
He did do some pretrial litigation, but at the hands of the other individuals.

[00:37:33] Speaker 04:
He then was gone because he was doing another trial or another other trials.

[00:37:37] Speaker 04:
He came in and relied upon what workup had been done and what pretrial litigation had been handled by Briggs and the other folks.

[00:37:46] Speaker 04:
So that when, and I know Mr. Sarah well, when he comes in to do an examination of a witness, he has the file and the documents.

[00:37:56] Speaker 04:
Mr. Briggs makes clear in his declaration they didn't provide that stuff to him.

[00:38:01] Speaker 04:
So he didn't know what to do other than the standard, these are all cooperators, these are all liars, this is the way it goes, and the government says, yes, they're bad people, et cetera.

[00:38:13] Speaker 04:
Well, that's exactly what he said about his own client when he put his own client on.

[00:38:18] Speaker 04:
and didn't have a limitation in understanding about what that plea agreement was and the separate immunity agreement that was put together by Mr. Dressler that would have prevented Chow from having to testify.

[00:38:33] Speaker 04:
Chow is caught.

[00:38:34] Speaker 03:
Council, we have your argument.

[00:38:36] Speaker 03:
You're over.

[00:38:37] Speaker 03:
You've done a great job defending your client.

[00:38:39] Speaker 04:
Oh, I went over.

[00:38:40] Speaker 03:
Yeah, no.

[00:38:41] Speaker 03:
Red means you're on our time.

[00:38:44] Speaker 03:
Thank you.

[00:38:45] Speaker 03:
Thank you, counsel.

[00:38:46] Speaker 03:
Thank you to both counsel for your arguments in the case.

[00:38:48] Speaker 03:
The case is now submitted.