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United States of America versus Gregory Joel Seisman, appellate.

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Mr. Knight for the appellate, Mr. Lennox for the appellate.

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Were you going to put seven?

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Good morning.

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Good morning, your honor.

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May it please the court, my name is Paul Knight.

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I'm representing the appellate, Gregory Sitzman, in this matter.

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I did not represent Mr. Sitzman down below.

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I came in the case after he was convicted by a jury and proceeded from that point on.

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I want to start right in with the arguments dealing with what I consider the concealment, the Brady and Giglio violations, the nephew issues, and the concealment of evidence and all.

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Just as a couple of preliminary statements, this case kind of breaks down into three segments, and it's helpful to sort of exclude, take out what isn't really at issue here.

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There's the Canadian gas tank smuggles in 98 and 99.

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We're not dealing with that.

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Then there's the extraterritorial smuggling, which is a separate issue, but we're really not dealing with that.

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What this case, in most of the argument, is going to be dealing with was the few months in 2004 when the government took a run at George Jones, who was an associate of Mr. Sitzman's.

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And that's really where the focus was at.

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As the Court may recall, that was a situation where an informant by the name of Terrence Culligan was trying to approach Mr. Jones.

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In the course of that, during that time, Mr. Siss was arrested in France and convicted and removed.

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He was staying in France for a long period of time, and then further activity occurred.

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As I said, I'm going to be focusing in that particular area.

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When we got to that point, in 2004 in this case, the government had presented evidence about matters going from Texas to Detroit to Canada.

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They had matters dealing with drugs going from Bogota to Europe.

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But Mr. Sisman had never been in the District of Columbia.

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So in 2004, they're taking a

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run at Mr. Jones and and who as you just said was his associate it was his associate in 90 he was a driver in 98 and 99 and then he had in between there and that becomes pretty critical for the venue issue doesn't it not really because well

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I don't believe so, because those matters, none of those occurred anywhere near the District of Columbia.

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So Mr. Jones has then had 10 heart attacks, has had two open-heart surgeries.

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He's living down in Florida.

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Mr. Tarrant's colleague in the government informant comes and approaches him.

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Living down in Florida, but he wires the money into Washington.

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I'm sorry, but he money's he he wires the money into Washington He does and that is the only so if so unless your client had withdrawn from the conspiracy by then venue is established Well, or if this is a even part of the conspiracy our position is this was never even part of the conspiracy with mr. Culligan that mr. Culligan was setting this entire matter up

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and that when the government had no evidence, the case was originally indicted under a very strange theory by the government and they

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tended to be the world drug police and they thought this was an indictment under 3238 which was which if all the acts occur outside the United States you can get venue here in the District of Columbia.

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Judge Friedman when he told them it was 3237 all of a sudden they have to get venue in the District of Columbia.

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But as you recall from looking at the indictment they're charging violations in the United States and then all over the world after that.

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So it was

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at the tail end of the case, all of a sudden, the government's confronted.

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I got no evidence tying Mr. Sitzman to the District of Columbia.

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And that's what this whole focus is in 2004, and them trying to present evidence.

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And then a few issues.

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For example, what I think is very critical in this matter is when the agent says they initially took a run at

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Mr. Jones and said, we'll give you 20 kilograms and you give us $350,000.

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Well, it was almost a laughable proposition.

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Mr. Jones is living on $380 a month of welfare.

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He doesn't have any money.

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And it was like, oh my God, there was a surprise that he didn't have this money.

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So that matter is aborted.

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But when the government and the only people that Mr. Jones is associated with are his friends, his associates, not Sitzman's.

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But when the government testified, where was this $360,000 coming from, they said from Sitzman's people.

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There's no Sitzman's people to provide this money.

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They were trying to link Mr. Sitzman to this through false testimony when, in fact, the only three people who were going to be purchasers of the cocaine that was being produced by the government was Mr. Mesa, Mesa's friend, Bruce Frazee, who's also a.k.a.

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Pops.

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and a third individual, Michael Maloney.

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Doesn't this argument work only if there's no legally sufficient evidence to support the proposition that Sitzman and Jones are working together in these drug deals?

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Well, there's no question they work together in the drug deals in 98 and 99.

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The evidence is, our position is, there was no evidence that they were working together in 2004.

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That this is, that this matter is a government sting.

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You've got, Mr. Colligan.

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I thought your client, when he was arrested in 2004, had the names of all these people in his address book.

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Sure, but that doesn't make him his people.

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It would support a reasonable inference that they are Sitzman's people.

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Maybe not compelled, but it's a permissible view of the evidence.

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He had 10,000 names in phone books.

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Are every one of those people part of his organization?

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I think that's just a stretch beyond imagination.

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But you can see, don't you, that if we thought the evidence suggested otherwise, that he

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was a co-conspirator, then there is sufficient venue in D.C.

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based on this colorful column of wiring.

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But it turns on whether we conclude that Jones was a co-conspirator with Sitzman.

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And I recognize you're disputing that.

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Well, my argument right now is the government withheld information which would tend to show that Mr. Sitzman was not a conspirator.

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That's the deagly and the pew issues that you cannot prevent.

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and take that evidence away from him.

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I'm sorry, what is the evidence withheld?

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I thought your Brady argument is focused on Jones' grand jury testimony and your, is it NAPU?

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Your NAPU argument is focused on what we were just talking about, which is the Sitzman's people reference.

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Yeah, exactly.

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In other words, the government resisted turning over the grand jury testimony of George Jones.

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He's been dead for four years.

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And you're saying that testimony would have tended to show no conspiracy at the relevant time between Sitzman and Jones.

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That's right.

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When Jones is asked in his own words, tell me how you got into this position.

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How did you get arrested?

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And what does he start?

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He starts in January of 2004, says, I approached Mr. Culligan and asked him if he could give me anything to work with.

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The grand jury testimony is Jones says in 2004, Sitzman promised to supply multi-kilogram quantities of cocaine to Jones.

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Sounds pretty inculpatory.

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That is the statement that was in the plea that the government typed up, the script that the government typed up in 2004 when he pled guilty.

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I'm not disputing that evidence is there.

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I have to admit it's there.

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It came from Culligan.

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It was all hearsay.

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Culligan's dead.

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He can't testify to any of this.

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The government is relying on what Culligan is saying because Culligan's waiting to be sentenced.

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He's trying to set up an opportunity to get sentencing credit.

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But what I'm pointing out is the government withheld the fact when they said he was trying to sell the drugs to Sitzman's people, there's no evidence that these are Sitzman's people.

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The testimony in the grand jury, which I didn't get until the sentencing, showed that the drugs were going to be distributed to three associates of Mr. Jones.

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You can't withhold that information.

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That's the defense that we're trying to present.

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And yet the government is trying to show it's Sitzman, it's Sitzman, it's Sitzman because they got nothing to link him to this case.

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He's never been in the District of Columbia.

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They've got a bootstrap on that phone call to try to get him in as make that part of a conspiracy.

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So by hiding that evidence, not turning it over and preventing us

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When the court, they hid the fact that Jones, there's some tapes where Jones said he was going to share the money, but the grand jury testimony showed he was not going to share it.

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I presume you wanted to reserve some time.

[00:09:11] Speaker 01:
I did.

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I'm sorry.

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Unless my colleagues have any questions.

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How do you answer the failure to preserve the venue objection?

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Well, I think the venue objection was preserved because it was cut off.

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In other words, when the trial counsel was

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coming around to getting into the venue issue, the government jumps up and says, Your Honor, he's raising venue.

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And then they cut him off from preventing any further questions.

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So the venue issue was teed up in front of the judge during the case in chief.

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He was essentially consenting to it at the middle of trial.

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I'm sorry?

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I thought he was essentially consenting to it at the middle of trial.

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I don't think he was consenting to it.

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The government objected.

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He certainly wasn't objecting to it.

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And it came up more than once.

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It came up more than once at one point

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This is that the government objects, the government drafts an instruction, and the trial counsel does not object to the instruction that venue was proper.

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I can't defend trial counsel at all in this particular case.

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That was why I got into the ineffective assistance issue.

[00:10:14] Speaker 01:
So it was not properly raised?

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Well, I think it was raised before the court, and the issue was teed up at that time.

[00:10:22] Speaker 01:
At what time?

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During the case in chief, during the cross-examination of Bus, that when he was getting into the venue issues, that that matter was raised and cut off by the government.

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He's raising venue, Your Honor, and that stopped any further questioning about that at that time.

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You mean because the government's, I'm going to make sure I understand.

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And I realize this is not you, so anything that sounds a little perplexing of my size.

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No, I understand.

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This case is perplexing at every turn.

[00:10:54] Speaker 01:
OK, well, but you surely don't mean to suggest that merely because the government jumped up and said something that counsel should then kind of shrink away and not raise an objection, it should be properly raised?

[00:11:07] Speaker 02:
The rejection could have been more strongly raised.

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I can't deny that, Judge.

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Okay, gotcha.

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Thank you.

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We'll give you a minute back.

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Thank you.

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I'm sorry.

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Let's hear from the government now.

[00:11:20] Speaker 04:
Good morning.

[00:11:21] Speaker 04:
Good morning, Honor.

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Thank you, and may it please the Court.

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My name is Dan Lenners, and I represent the United States.

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The only way to find a Brady violation in this case is to ignore entirely the fact that George Jones, during his grand jury testimony,

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adopted the proffer that he made in support of his plea, in which he admits that he was looking to receive cocaine from the defendant, Sitzman, prior to January 2004, and that in January 2004, when it became clear that Sitzman could not deliver upon that promise, he turned to Terrence Colligan.

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Not only did Jones twice adopt this testimony and verify its truth as part of his grand jury testimony, but he made clear that

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any parts of his plea proffer that he wasn't sure about, he wasn't willing to verify the truth of.

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And that's at appendix 477 to 478, where he takes issue with a statement about how much cocaine he had smuggled to Chicago in the 90s.

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So once he adopted this grand jury proffer, or this plea proffer as part of his grand jury testimony, there is simply no Brady violation here.

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In terms of venue, the defendant's counsel

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failed to object to venue prior to trial and thus waived any legal challenge to venue.

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This court has made clear that you have to raise legal challenges to venue prior to trial if not they're waived.

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During trial he did not meet the hair factors for having the jury be instructed to find venue.

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As Judge Edwards noted, the only questioning was about venue entrapment.

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And when the government asked the court to give an instruction that it had found venue as a matter of law, defense counsel agreed that venue was a legal question and did not object to that instruction.

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And so there was no basis for instructing the jury that it had defined as a factual matter that the Jones wire transfer

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to D.C.

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was part of the same conspiracy.

[00:13:26] Speaker 01:
What do you think is the best evidence on your side of it in the grand jury?

[00:13:31] Speaker 01:
It looks innocuous to me.

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I mean, suggesting that his testimony was indicating there was a real arrangement and agreement, it doesn't really look that clear to me.

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It looks like it was much of nothing.

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in the grand jury.

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It looks like a guy, let me tell you what my view was, it looks like a guy who has fanciful motions, but the defendant wasn't agreeing to any of it, wasn't suggesting sure we've got a deal.

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What are the words that are suggested?

[00:14:01] Speaker 04:
Your Honor, the best evidence that George Jones was part of an ongoing conspiracy with Greg Sitzman in February of 2004 does not come from the grand jury.

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It comes from the body wire recordings that occurred on March 11th, 2004 between Jones and Colligan.

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At that time, Jones said that he intended to split the proceeds of the sale of the cocaine he was getting from Colligan 50-50 with Sitzman, 7-50 to himself.

[00:14:28] Speaker 01:
Who did he say that to?

[00:14:29] Speaker 01:
To whom?

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He said that to Terrence Colligan, who he... What does that have to do with Sitzman?

[00:14:33] Speaker 01:
It shows that Jones... That doesn't show that Sitzman's agreeing to anything.

[00:14:37] Speaker 04:
Jones and Sitzman had a lengthy conspiratorial relationship.

[00:14:42] Speaker 01:
That's what I'm trying to understand.

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So you're writing the fact that they had a past arrangement to hook in in 2004.

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What they're suggesting on the Brady is that the grand jury testimony essentially shows that Sitzman wasn't a part of any meaningful arrangement then.

[00:15:01] Speaker 01:
You're trying to tie the

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this whole venue and everything in to the 2004.

[00:15:06] Speaker 01:
They're saying the grand jury shows there was no connection with Sitzman on any consequence in 2004.

[00:15:14] Speaker 01:
Your response to me then is, well, but in the 1990s, they had a strong connection.

[00:15:20] Speaker 04:
It's not just that, Your Honor.

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They're saying that the grand jury is Brady because it somehow undercuts

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the assertion that Jones was looking for cocaine from Sitzman in late 2003 and early 2004.

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In the grand jury, Jones expressly adopted his plea proffer in which he said that's what he was doing.

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The fact that there was this ongoing conspiratorial relationship past the 90s is shown by the fact that

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Jones intended to split the proceeds of his cocaine sale with Sitzman, that he said in the same body wire that this is what they typically did.

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Whenever Greg got 100, he gave me 50, and whenever I got 100, I gave him 50.

[00:16:00] Speaker 04:
Sitzman stored his drug smuggling bags, his drug wrapping packaging, his personal documents at Jones's house.

[00:16:08] Speaker 04:
Sitzman used Jones's house in the early 2000s.

[00:16:11] Speaker 01:
No, I understand all that.

[00:16:12] Speaker 01:
I'm just trying to understand the...

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what was really going on in 2003-04.

[00:16:16] Speaker 01:
You're saying the grand jury testimony includes his adoption of the plea agreement, which would solidify your claim.

[00:16:26] Speaker 01:
That is, when he said, yes, I adopt that, there was enough in there to make the connection you want.

[00:16:31] Speaker 01:
That's your argument?

[00:16:32] Speaker 01:
My argument is that- Because otherwise it isn't there.

[00:16:36] Speaker 04:
My argument is not that the grand jury testimony proves there was a connection.

[00:16:40] Speaker 04:
My argument is that by adopting the plea proffer, he admitted to the facts that counsel is saying the government suppressed.

[00:16:50] Speaker 01:
That's what I'm asking.

[00:16:51] Speaker 01:
It's the plea, the reference to the plea proffer that really is the only thing that doesn't fit.

[00:16:56] Speaker 04:
Which he twice adopted as part of his grand jury testimony.

[00:17:00] Speaker 04:
And there were many other circumstances showing that Jones's relationship did not, as Sitzman claims, end in 2000, but was ongoing into 2004, and thus supports both the propriety of venue here in DC, as well as the fact that there's no Brady violation.

[00:17:22] Speaker 04:
If there are no further questions.

[00:17:23] Speaker 03:
Could I just ask you about the co-conspirator conviction?

[00:17:26] Speaker 03:
You're not defending the admission of that evidence, are you?

[00:17:34] Speaker 03:
No, Your Honor, we're not.

[00:17:35] Speaker 03:
It seems like it's a pretty obvious error.

[00:17:39] Speaker 03:
It seems like it may have been intentional when the prosecutor came back to it three times in a row.

[00:17:45] Speaker 03:
I assume for a case of this magnitude, it would have been a pretty experienced prosecutor.

[00:17:51] Speaker 04:
It was not intentional, Your Honor.

[00:17:53] Speaker 04:
The prosecutor, as he explained in the post-trial pleadings, was merely trying to complete the timeline and complete the story.

[00:18:01] Speaker 04:
of what happened to George Jones after he arrested to show that he had not escaped scot-free.

[00:18:06] Speaker 03:
Which could have very easily been done by the final question establishing that Jones was then dead.

[00:18:13] Speaker 04:
It could have been done otherwise and the government is not defending that it wasn't error to ask that question but it wasn't some sort of intentional attempt to

[00:18:25] Speaker 04:
to manipulate the process, and it was plainly harmless, given that that's the only time it came up during a five week trial.

[00:18:31] Speaker 01:
It was plainly harmless?

[00:18:33] Speaker 04:
Yes, Your Honor.

[00:18:34] Speaker 01:
Really?

[00:18:35] Speaker 01:
It was repeated over and over again.

[00:18:37] Speaker 04:
No, Your Honor.

[00:18:38] Speaker 01:
It was repeated two or three times.

[00:18:40] Speaker 04:
It was asked during the questioning one time, what was, was Jones convicted of conspiring to possess with the intent to distribute five kilograms or more of cocaine?

[00:18:49] Speaker 04:
Yes.

[00:18:50] Speaker 04:
That was the one time it was stated during trial.

[00:18:53] Speaker 04:
And the district court who oversaw the trial found that this could not have harmed Sitzman given that it was not repeated during closing statements.

[00:19:01] Speaker 01:
No, no, it wasn't repeated during closing statements, but that colloquy

[00:19:04] Speaker 03:
There's three consecutive questions in one exchange.

[00:19:07] Speaker 04:
As I understood, there was only one question.

[00:19:10] Speaker 04:
I went to the improper admission of the guilty plea.

[00:19:14] Speaker 04:
The other two were not were unrelated topics, but weren't specifically that he had been convicted of.

[00:19:21] Speaker 03:
Question, did Jones plead guilty?

[00:19:25] Speaker 03:
Answer, he pled guilty.

[00:19:26] Speaker 03:
Question, what did he plea?

[00:19:28] Speaker 03:
Answer, and he signed a plea agreement.

[00:19:30] Speaker 03:
Question, okay, and did he plead guilty to conspiracy to distribute and so on?

[00:19:35] Speaker 03:
Answer, that's correct.

[00:19:37] Speaker 04:
Yes, Your Honor, I'm sorry, I didn't understand.

[00:19:39] Speaker 01:
That's about as non-harmless as you can get.

[00:19:42] Speaker 04:
I disagree, Your Honor.

[00:19:43] Speaker 01:
I know you disagree, you have to, but we both have the same concern.

[00:19:48] Speaker 01:
How in heaven's name did this come in and do this, an experienced prosecutor doing this three times, knowing this is absolutely error?

[00:19:56] Speaker 01:
Your Honor, I... Prejudicial error?

[00:20:00] Speaker 04:
I'm not defending that it was error, but harmless in terms of it being a five-week trial.

[00:20:05] Speaker 04:
It was not repeated during closing statements.

[00:20:07] Speaker 01:
Other courts that have looked at- Who's the burden on the harmlessness question?

[00:20:13] Speaker 04:
That's a difficult question, Your Honor.

[00:20:14] Speaker 04:
The Fifth Circuit has said that it's- We're not in the Fifth Circuit.

[00:20:18] Speaker 01:
I think I've written an opinion.

[00:20:20] Speaker 01:
I think there's some other opinions.

[00:20:21] Speaker 01:
It says the burden's on the prosecutor, who wants to be on a reasonable doubt.

[00:20:25] Speaker 04:
I couldn't find any opinions in the circuit.

[00:20:28] Speaker 01:
You want me to send you one?

[00:20:30] Speaker 04:
I'm sorry, I did not find any opinions in this circuit saying the burden on a illegal or improper reference to a co-conspirator's guilty plea.

[00:20:39] Speaker 01:
Oh, no, not that particular.

[00:20:40] Speaker 01:
When there's error in this context, the burden is what?

[00:20:46] Speaker 01:
Beyond a reasonable doubt on the government.

[00:20:48] Speaker 04:
Even if that's the burden, Your Honor, the government doesn't have it here.

[00:20:51] Speaker 01:
That is the burden.

[00:20:52] Speaker 01:
Unless you show me some contrary.

[00:20:56] Speaker 04:
The court did not like my citation to the Fifth Circuit precedent.

[00:21:00] Speaker 01:
Well, that's right because we have our own Beyond a reasonable doubt on homelessness in a criminal context Burdens on the government and that's met here your honor by the fact that it was only mentioned during this one

[00:21:12] Speaker 04:
colloquy.

[00:21:13] Speaker 04:
It was not repeated during trial.

[00:21:15] Speaker 04:
It was a lengthy trial.

[00:21:16] Speaker 04:
Other courts have found more egregious references, repeated references to multiple co-defendants guilty pleas to be harmless in a similar context.

[00:21:27] Speaker 04:
The evidence that Sitzman engaged in this multi-decade international drug smuggling conspiracy was overwhelming.

[00:21:35] Speaker 01:
And why do you mess up a case?

[00:21:37] Speaker 01:
That's what's so stunning.

[00:21:38] Speaker 01:
I mean, that's what's really kind of perplexing.

[00:21:40] Speaker 01:
I don't mean to be patronizing or something like I'm lecturing you, but it really is perplexing that a prosecutor would pull a stunt like this three times.

[00:21:50] Speaker 01:
We've all caught it.

[00:21:51] Speaker 01:
Clear error in a case in which you think there's overwhelming evidence.

[00:21:56] Speaker 01:
You know, we do have a system with rules.

[00:21:57] Speaker 01:
Why don't we follow them?

[00:21:59] Speaker 04:
I agree that it was error, Your Honor, that we've discussed this with the trial prosecutor.

[00:22:05] Speaker 04:
The trial prosecutor indicated in his post-trial pleadings that he was trying to complete the story on Jones and also was thinking of Jones as a cooperator.

[00:22:14] Speaker 04:
And in the cooperator context, one does put in their plea agreement.

[00:22:19] Speaker 04:
It was error in this case to do so, but that error was harmless beyond a reasonable doubt, even if it is the government's burden.

[00:22:25] Speaker 03:
Harmlessness is a pretty tough sell.

[00:22:29] Speaker 03:
I thought your answer to that question would have been that this wasn't preserved below and therefore we're up on plain error and it's the other side's burden to show a very substantial degree of prejudice for that reason.

[00:22:45] Speaker 03:
That should have been my answer.

[00:22:47] Speaker 00:
He's giving you an opening.

[00:22:48] Speaker 00:
I was surprised you were going with me on harmlessness.

[00:22:54] Speaker 00:
I like to travel the road if you're willing to go.

[00:22:56] Speaker 04:
It was not preserved below.

[00:22:58] Speaker 04:
It is before this court on plain error, and it doesn't meet the standard for plain error.

[00:23:03] Speaker 04:
Thank you.

[00:23:03] Speaker 04:
If there are no further questions.

[00:23:05] Speaker 02:
Thank you very much.

[00:23:09] Speaker 02:
Mr. Knight, we'll give you back a minute.

[00:23:11] Speaker 02:
Thank you.

[00:23:12] Speaker 02:
The point I wanted to make is

[00:23:14] Speaker 02:
There is evidence that's bad against Hitzman.

[00:23:17] Speaker 02:
But what I'm complaining about under the Brady and Nappu argument is the government has a duty to turn over the good stuff, too.

[00:23:25] Speaker 02:
That is the argument.

[00:23:26] Speaker 02:
So it's not what I'm trying to show is we were deprived of that evidence, which is so important.

[00:23:31] Speaker 02:
I do want to emphasize about the conviction that

[00:23:34] Speaker 02:
It's about as clear as it can possibly be that a prosecutor cannot introduce a conviction.

[00:23:40] Speaker 02:
It's prosecution 101.

[00:23:43] Speaker 02:
But the thing, and that was compounded, and this is the point that I was making.

[00:23:46] Speaker 02:
The government seals George Jones' court file.

[00:23:51] Speaker 02:
They completely take it out of the record.

[00:23:53] Speaker 02:
So we don't know

[00:23:54] Speaker 02:
And I was surprised in 2013, two years after the trial, to learn that there was a plea bargain, that he was charged with two separate conspiracies, that the conspiracy in this one only ran from January until March, which is a critical factor in this whole case.

[00:24:10] Speaker 02:
So by sealing and taking away, the government cannot just seal up court records and take them away from the defense to be able to review.

[00:24:20] Speaker 02:
Thank you very much.

[00:24:21] Speaker 02:
Mr. Knight, you were appointed by the court to represent the appellant in this case and we thank you for your assistance.

[00:24:28] Speaker 02:
The case is submitted.