1 00:00:02,880 --> 00:00:09,240 Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio. 2 00:00:09,200 --> 00:00:12,280 Speaker 2: And his face lost all expression. He said, if you're 3 00:00:12,320 --> 00:00:14,000 Speaker 2: gonna play the game. 4 00:00:13,840 --> 00:00:16,439 Speaker 1: Boy, you gotta learn to please right. 5 00:00:17,040 --> 00:00:21,520 Speaker 2: You got to do when the home no, when the 6 00:00:21,640 --> 00:00:24,799 Speaker 2: fold no, when the law. 7 00:00:26,280 --> 00:00:26,440 Speaker 3: No. 8 00:00:27,200 --> 00:00:27,400 Speaker 2: Rhyme. 9 00:00:28,440 --> 00:00:32,919 Speaker 4: Superstar Supreme Court lawyer Tom Goldstein took the stand at 10 00:00:32,920 --> 00:00:38,480 Speaker 4: his criminal tax trial, going all in with extraordinarily high stakes, 11 00:00:38,800 --> 00:00:42,400 Speaker 4: even higher than those at the multimillion dollar poker games 12 00:00:42,440 --> 00:00:45,479 Speaker 4: he played in and gambling is at the center of 13 00:00:45,520 --> 00:00:50,000 Speaker 4: the trial where Goldstein is accused of misreporting millions of 14 00:00:50,080 --> 00:00:53,519 Speaker 4: dollars in poker wins. He lived a double life as 15 00:00:53,560 --> 00:00:56,840 Speaker 4: a member of the elite Supreme Court bar who argued 16 00:00:56,920 --> 00:01:00,400 Speaker 4: more than forty cases before the High Court, and as 17 00:01:00,400 --> 00:01:03,480 Speaker 4: a high stakes poker player who won about twenty six 18 00:01:03,560 --> 00:01:07,520 Speaker 4: million dollars in one series of matches and once walked 19 00:01:07,520 --> 00:01:11,040 Speaker 4: through US Customs carrying a bag of nearly a million 20 00:01:11,120 --> 00:01:15,600 Speaker 4: dollars in cash. Goldstein knows the odds and risks of 21 00:01:15,720 --> 00:01:19,600 Speaker 4: taking the stand and opening himself up to cross examination, 22 00:01:20,240 --> 00:01:23,319 Speaker 4: but he's gambling that the jury will believe him and 23 00:01:23,360 --> 00:01:27,560 Speaker 4: acquit him. Joining me is Bloomberg Law. Senior reporter Holly Marker, 24 00:01:27,840 --> 00:01:32,120 Speaker 4: who's covering the Goldstein trial. Holly start by telling us 25 00:01:32,160 --> 00:01:37,360 Speaker 4: about how shocked the legal world was when Goldstein was indicted. 26 00:01:37,760 --> 00:01:39,559 Speaker 5: Tom Goldstein is a legal rock star. 27 00:01:39,840 --> 00:01:43,720 Speaker 1: He's argued more than forty cases before the US Supreme Court, 28 00:01:43,920 --> 00:01:47,360 Speaker 1: and he got there via a really unlikely route. Most 29 00:01:47,400 --> 00:01:50,720 Speaker 1: people who make it to the Supreme Court who are 30 00:01:50,840 --> 00:01:54,160 Speaker 1: that kind of elite lawyer also went to elite law 31 00:01:54,200 --> 00:01:57,360 Speaker 1: schools and they clerked for Supreme Court justices and so on, 32 00:01:57,920 --> 00:02:00,720 Speaker 1: And he sort of got there through pure hustle. He 33 00:02:00,760 --> 00:02:03,760 Speaker 1: would identify cases that he thought were likely to get 34 00:02:03,760 --> 00:02:07,120 Speaker 1: taken up by Scotus, and he would cold call the 35 00:02:07,120 --> 00:02:09,600 Speaker 1: people involved in the case and sort of pitch himself 36 00:02:09,639 --> 00:02:11,680 Speaker 1: as the best person to take it up. And that's 37 00:02:11,760 --> 00:02:13,920 Speaker 1: kind of how he built his career. He was also 38 00:02:14,000 --> 00:02:16,799 Speaker 1: the co founder of the same called Scotus Blog, which 39 00:02:16,840 --> 00:02:20,200 Speaker 1: is a website that sort of covers all things Supreme 40 00:02:20,240 --> 00:02:24,160 Speaker 1: Court and became a really critical resource for people in 41 00:02:24,200 --> 00:02:28,799 Speaker 1: the legal world. So, when he was indicted last year 42 00:02:29,040 --> 00:02:33,200 Speaker 1: on twenty two counts, a combination of tax charges and 43 00:02:33,360 --> 00:02:36,880 Speaker 1: allegations that he made a false statement in connection with 44 00:02:37,000 --> 00:02:38,120 Speaker 1: loan applications. 45 00:02:38,440 --> 00:02:39,280 Speaker 5: People were shocked. 46 00:02:39,600 --> 00:02:43,440 Speaker 1: Those charges have been winnowed since they initially dropped. He 47 00:02:43,560 --> 00:02:46,560 Speaker 1: is presently on trial for one count of tax evasion 48 00:02:46,680 --> 00:02:49,880 Speaker 1: for twenty sixteen, eight counts of aiding and assisting in 49 00:02:49,919 --> 00:02:53,079 Speaker 1: a preparation of false and fraudulent tax returns, four counts 50 00:02:53,080 --> 00:02:56,160 Speaker 1: of full failure to pay taxes, and three counts of 51 00:02:56,200 --> 00:02:58,160 Speaker 1: making a false statement on a loan application. 52 00:02:58,800 --> 00:03:01,480 Speaker 4: How did he get into this world of high stakes 53 00:03:01,560 --> 00:03:04,400 Speaker 4: poker and how much money did he make from playing? 54 00:03:04,919 --> 00:03:07,520 Speaker 1: So it had an interest in gambling, like he would 55 00:03:07,520 --> 00:03:11,000 Speaker 1: play poker with people in his law firm. You know, 56 00:03:11,120 --> 00:03:14,760 Speaker 1: he represented people in the poker world. You know, one 57 00:03:14,800 --> 00:03:17,640 Speaker 1: of his clients has featured heavily in this trial. But 58 00:03:17,720 --> 00:03:21,000 Speaker 1: it wasn't really until twenty sixteen until he started playing 59 00:03:21,040 --> 00:03:26,079 Speaker 1: these like massive multi million dollar hands and that's sort 60 00:03:26,120 --> 00:03:28,040 Speaker 1: of when things surfaced for him. 61 00:03:28,120 --> 00:03:30,600 Speaker 5: And at trial, since he's taken the stand. 62 00:03:30,680 --> 00:03:34,120 Speaker 1: It came out that in twenty fourteen he had a 63 00:03:34,160 --> 00:03:38,600 Speaker 1: pulmonary embolism and almost died. And after that happened, and 64 00:03:38,640 --> 00:03:40,720 Speaker 1: I'm paraphrasing here, but he sort of felt like I've 65 00:03:40,720 --> 00:03:41,640 Speaker 1: got to seize life. 66 00:03:41,680 --> 00:03:43,200 Speaker 5: And he went on to say. 67 00:03:43,080 --> 00:03:45,520 Speaker 1: I may have overcooked that a bit, but that's sort 68 00:03:45,560 --> 00:03:48,680 Speaker 1: of what led to his gambling in his sort of 69 00:03:48,760 --> 00:03:51,800 Speaker 1: peak year in twenty sixteen, although it continued for years 70 00:03:51,840 --> 00:03:53,720 Speaker 1: after that with him mostly losing. 71 00:03:54,040 --> 00:03:56,280 Speaker 5: But to answer your question, he. 72 00:03:56,200 --> 00:04:00,840 Speaker 1: Played Alec Goriz in twenty sixteen and won around twenty 73 00:04:00,880 --> 00:04:04,160 Speaker 1: six million from him in a series of matches. To 74 00:04:04,240 --> 00:04:06,560 Speaker 1: give you like a rough sense of the kind of 75 00:04:06,640 --> 00:04:08,520 Speaker 1: dollar figures we're talking about. 76 00:04:08,760 --> 00:04:13,480 Speaker 4: The prosecution presented more than a dozen witnesses, from irs 77 00:04:13,640 --> 00:04:18,840 Speaker 4: agents and accountants to professional poker players and real estate moguls, 78 00:04:18,920 --> 00:04:22,599 Speaker 4: and even one movie star, Toby maguire, who were the 79 00:04:22,640 --> 00:04:24,880 Speaker 4: most important witnesses for the prosecution. 80 00:04:25,760 --> 00:04:30,080 Speaker 1: I think the most important witnesses in this trial for 81 00:04:30,160 --> 00:04:36,239 Speaker 1: the government were likely the accountants at Goldstein's outside accounting firm. 82 00:04:36,600 --> 00:04:40,000 Speaker 1: His defense, you know, there were errors on his tax returns. 83 00:04:40,040 --> 00:04:43,919 Speaker 1: He's not disputing that there were transactions that should have 84 00:04:43,920 --> 00:04:47,279 Speaker 1: been characterized differently, either should have been characterized as income 85 00:04:47,640 --> 00:04:50,479 Speaker 1: or shouldn't have been deducted as business expenses. 86 00:04:50,760 --> 00:04:52,000 Speaker 5: And there's only a handful of. 87 00:04:51,920 --> 00:04:55,000 Speaker 1: Them, eight to be exact, and he's saying, look, yes, 88 00:04:55,360 --> 00:04:58,599 Speaker 1: those should have been characterized differently, but it wasn't my fault. 89 00:04:58,839 --> 00:05:01,920 Speaker 1: I was relying on my accountants and my firm managers. 90 00:05:02,440 --> 00:05:04,640 Speaker 1: If they had any questions, I would answer them. I 91 00:05:04,640 --> 00:05:07,599 Speaker 1: would answer them honestly and to the best of my ability. 92 00:05:07,920 --> 00:05:09,800 Speaker 5: And they were the ones dropping the ball on this. 93 00:05:10,320 --> 00:05:13,520 Speaker 1: So in that respect, getting the accountants on the stand 94 00:05:13,920 --> 00:05:17,240 Speaker 1: to sort of explain what their process was and the 95 00:05:17,279 --> 00:05:20,680 Speaker 1: efforts that they made to get his returns right was 96 00:05:20,720 --> 00:05:23,279 Speaker 1: really important I think for the government. But I will 97 00:05:23,320 --> 00:05:27,320 Speaker 1: say that the cross examination of both of the accountants 98 00:05:27,720 --> 00:05:28,720 Speaker 1: was super effective. 99 00:05:28,839 --> 00:05:30,960 Speaker 5: They highlighted mistakes. 100 00:05:30,520 --> 00:05:33,599 Speaker 1: That the accountants made that hurt gold Scene that he 101 00:05:33,640 --> 00:05:37,440 Speaker 1: didn't catch in terms of his tax liabilities, and they 102 00:05:37,440 --> 00:05:41,479 Speaker 1: didn't follow up and ask specific questions. Gold Scene's lead 103 00:05:41,600 --> 00:05:44,320 Speaker 1: defense layer just sort of took it apart. 104 00:05:44,480 --> 00:05:47,560 Speaker 4: You know, I have to ask you about Toby McGuire's testimony. 105 00:05:47,839 --> 00:05:50,080 Speaker 4: He's known as a high stakes poker player. 106 00:05:50,480 --> 00:05:54,200 Speaker 1: Toby McGuire is apparently a very avid poker player and 107 00:05:54,400 --> 00:05:58,560 Speaker 1: also a seemingly very good one. When he stepped off 108 00:05:58,560 --> 00:06:01,520 Speaker 1: the stand, he left you the impression that he could 109 00:06:01,720 --> 00:06:04,920 Speaker 1: have made more money playing poker than he made playing 110 00:06:04,920 --> 00:06:08,719 Speaker 1: Spider Man. He took the stand to testify about a 111 00:06:08,760 --> 00:06:12,440 Speaker 1: five hundred thousand dollars legal fee that he owed to 112 00:06:12,520 --> 00:06:18,240 Speaker 1: gold Scene after gold Steine helped McGuire recover significant gambling 113 00:06:18,279 --> 00:06:22,200 Speaker 1: debt from Andy Beal, who's a billionaire in Texas. So 114 00:06:22,240 --> 00:06:25,760 Speaker 1: he won fifteen point six million dollars in poker, about 115 00:06:25,839 --> 00:06:27,359 Speaker 1: half of that was his bill. 116 00:06:27,480 --> 00:06:29,839 Speaker 5: Didn't want to pay, so he hires gold Scene. 117 00:06:29,920 --> 00:06:33,440 Speaker 1: Gold Stine does the job, gets a successful result. McGuire 118 00:06:33,520 --> 00:06:36,640 Speaker 1: gets paid, and gold Stein has this five hundred thousand 119 00:06:36,680 --> 00:06:40,679 Speaker 1: dollar fee. But instead of having McGuire send the fee 120 00:06:40,720 --> 00:06:44,120 Speaker 1: to him, he had McGuire send the money directly to 121 00:06:44,200 --> 00:06:47,320 Speaker 1: someone to whom Goldstein owned a gambling debt. So the 122 00:06:47,360 --> 00:06:49,719 Speaker 1: idea was to have him come in and testify about 123 00:06:49,720 --> 00:06:53,640 Speaker 1: this transaction that was ultimately misclassified. But again, you know, 124 00:06:53,880 --> 00:06:57,920 Speaker 1: gold Scene isn't disputing that certain transactions were misclassified. What 125 00:06:57,960 --> 00:07:00,040 Speaker 1: he's saying is the way that it was classic. The 126 00:07:00,080 --> 00:07:02,039 Speaker 1: fin on my tax return is not my fault. It 127 00:07:02,080 --> 00:07:04,800 Speaker 1: was an error, but it wasn't an intentional error. 128 00:07:04,960 --> 00:07:07,400 Speaker 4: And whether or not he had intent is key in 129 00:07:07,440 --> 00:07:11,520 Speaker 4: this case. So Goldstein knows his way around a courtroom, obviously, 130 00:07:11,920 --> 00:07:15,440 Speaker 4: but getting on the stand yourself is another ballgame. What 131 00:07:15,520 --> 00:07:17,960 Speaker 4: was his demeanor like, he was. 132 00:07:18,400 --> 00:07:24,200 Speaker 1: Calm, collected, self deprecating at times. He seemed very well prepared. 133 00:07:24,440 --> 00:07:28,920 Speaker 1: He didn't sort of over explain. He seemed sincere. I 134 00:07:28,920 --> 00:07:31,040 Speaker 1: think the big risk in a lot of these cases 135 00:07:31,080 --> 00:07:33,560 Speaker 1: with defendants taking the stand is the risk that they'll 136 00:07:33,560 --> 00:07:36,160 Speaker 1: come across as arrogant, and he didn't come across as 137 00:07:36,240 --> 00:07:40,320 Speaker 1: arrogant at all. He did a lot to bolster the 138 00:07:40,360 --> 00:07:43,800 Speaker 1: defense's themes that they had been teasing out while crossing 139 00:07:43,840 --> 00:07:46,560 Speaker 1: the government's witnesses. And one of the most important things 140 00:07:46,560 --> 00:07:48,840 Speaker 1: I think he did on the stand was sort of 141 00:07:48,920 --> 00:07:52,160 Speaker 1: tied together and fill in the gaps in his gambling. 142 00:07:52,400 --> 00:07:55,000 Speaker 1: And when it all was said and done, he actually 143 00:07:55,080 --> 00:07:59,760 Speaker 1: said that he should not have reported any gambling winnings 144 00:08:00,040 --> 00:08:03,000 Speaker 1: on his twenty sixteen taxes. He said that he in 145 00:08:03,040 --> 00:08:08,520 Speaker 1: fact overpaid, which sort of upsets obviously the government's twenty 146 00:08:08,560 --> 00:08:10,600 Speaker 1: sixteen tax evasion theory. 147 00:08:10,680 --> 00:08:11,240 Speaker 5: Altogether. 148 00:08:11,680 --> 00:08:14,600 Speaker 4: The risks always come on the cross Was the government 149 00:08:14,680 --> 00:08:17,840 Speaker 4: able to score any points on the cross examination. 150 00:08:18,040 --> 00:08:22,800 Speaker 1: So on cross the government started was sort of establishing 151 00:08:22,960 --> 00:08:26,120 Speaker 1: that he has free will. Essentially, they were trying to 152 00:08:26,160 --> 00:08:28,720 Speaker 1: get him to acknowledge that he made all of the 153 00:08:28,800 --> 00:08:31,920 Speaker 1: choices that led to these mistakes, and that he was 154 00:08:31,960 --> 00:08:37,040 Speaker 1: fully capable, for example, of telling his for managers about 155 00:08:37,360 --> 00:08:40,679 Speaker 1: when a distribution was personal and shouldn't have counted as 156 00:08:40,679 --> 00:08:43,360 Speaker 1: a business expense, but failed to do so, and they 157 00:08:43,400 --> 00:08:47,080 Speaker 1: sort of framed that as his choice. They then lifted 158 00:08:47,320 --> 00:08:51,400 Speaker 1: very heavily into his spending and sort of history of 159 00:08:51,440 --> 00:08:54,680 Speaker 1: being dishonest with various people in his life. One thing 160 00:08:54,720 --> 00:08:57,360 Speaker 1: that did come out on his cross examination that I 161 00:08:57,400 --> 00:08:59,840 Speaker 1: think the defense had been working really hard to avoid 162 00:09:00,360 --> 00:09:02,760 Speaker 1: was all of these allegations about infidelity. 163 00:09:03,000 --> 00:09:04,679 Speaker 5: The prosecutor essentially. 164 00:09:04,320 --> 00:09:06,520 Speaker 1: Asked, you know, didn't you lie to your wife about 165 00:09:06,559 --> 00:09:10,240 Speaker 1: your many, many, many affairs, And he avoided answering the 166 00:09:10,320 --> 00:09:13,000 Speaker 1: question by saying, you know, that would require me to 167 00:09:13,080 --> 00:09:16,199 Speaker 1: talk about conversations I had with my wife, so effectively 168 00:09:16,240 --> 00:09:20,040 Speaker 1: invoking marital privilege, and the prosecution moved on. But of course, 169 00:09:20,120 --> 00:09:22,840 Speaker 1: now that's out there, and that, you know, could sully 170 00:09:22,880 --> 00:09:26,200 Speaker 1: his credibility with jurors a bit. Although you know, I'm 171 00:09:26,200 --> 00:09:29,160 Speaker 1: not sure that infidelity packs the same punch that it did, 172 00:09:29,360 --> 00:09:31,640 Speaker 1: you know, thirty years ago, but still, of course that 173 00:09:31,720 --> 00:09:35,800 Speaker 1: cuts against his credibility. He also acknowledged other sort of 174 00:09:36,080 --> 00:09:39,760 Speaker 1: misleading things. He'd done, or wies that he'd told, but 175 00:09:39,920 --> 00:09:42,560 Speaker 1: not all of them are that nefarious. So one of 176 00:09:42,600 --> 00:09:45,959 Speaker 1: the lies that the prosecution drew out he'd asked Paul 177 00:09:46,080 --> 00:09:50,120 Speaker 1: Napoli to invest five hundred thousand dollars in his poker 178 00:09:50,160 --> 00:09:51,640 Speaker 1: matches against Bob Sifi. 179 00:09:51,920 --> 00:09:54,520 Speaker 5: He'd like pumped himself up. He's like, I got this, I'm. 180 00:09:54,360 --> 00:09:55,160 Speaker 2: Going to win. You know. 181 00:09:55,240 --> 00:09:58,640 Speaker 1: He sort of really sold himself when he solicited that investment, 182 00:09:58,840 --> 00:10:03,160 Speaker 1: and then he just lost and lost and lost. But 183 00:10:03,280 --> 00:10:07,280 Speaker 1: instead of telling Paul Napoli that he lost, he instead 184 00:10:07,360 --> 00:10:10,040 Speaker 1: claimed that he won and gave him the five hundred 185 00:10:10,120 --> 00:10:14,280 Speaker 1: thousand dollars investment back, plus some purported winnings, so just 186 00:10:14,360 --> 00:10:16,680 Speaker 1: out of his own pocket. So that was a lie 187 00:10:16,760 --> 00:10:20,360 Speaker 1: that the prosecution elicited, but it's a lie that sort 188 00:10:20,360 --> 00:10:22,920 Speaker 1: of harmed him or that it harmed anybody else. The 189 00:10:22,960 --> 00:10:26,959 Speaker 1: other thing about the dishonesty is, other than the infidelity, 190 00:10:27,280 --> 00:10:28,760 Speaker 1: all of this was already in evidence. 191 00:10:29,000 --> 00:10:30,359 Speaker 5: Jurors had already heard. 192 00:10:30,320 --> 00:10:33,440 Speaker 1: About sort of points at which he'd been dishonest over 193 00:10:33,440 --> 00:10:34,360 Speaker 1: the last ten years. 194 00:10:34,960 --> 00:10:37,199 Speaker 5: So I'm not sure that it was quite. 195 00:10:36,920 --> 00:10:39,040 Speaker 1: As effective as it would have been if if that 196 00:10:39,120 --> 00:10:40,960 Speaker 1: had been sort of the first time they'd heard all 197 00:10:41,000 --> 00:10:41,160 Speaker 1: of this. 198 00:10:41,760 --> 00:10:46,400 Speaker 4: It's often telling when a witness's demeanor changes on cross. 199 00:10:46,840 --> 00:10:48,640 Speaker 4: Did Goldstein's demeanor change? 200 00:10:49,000 --> 00:10:52,720 Speaker 1: He got his back up a little bit, but not 201 00:10:52,960 --> 00:10:56,160 Speaker 1: in a way that I thought was disproportionate to the 202 00:10:56,240 --> 00:10:57,439 Speaker 1: questions he was feeling. 203 00:10:57,760 --> 00:11:00,520 Speaker 5: He maintained his school. I thought he did generally a 204 00:11:00,520 --> 00:11:01,000 Speaker 5: good job. 205 00:11:01,240 --> 00:11:04,640 Speaker 4: So do you think all in all Goldstein helped his 206 00:11:04,720 --> 00:11:08,239 Speaker 4: case by testifying, or hurt his case by testifying. 207 00:11:08,720 --> 00:11:11,400 Speaker 1: He did no violence to his case, and it may 208 00:11:11,440 --> 00:11:14,280 Speaker 1: have helped him, And I really do, actually, unbalanced think 209 00:11:14,280 --> 00:11:17,480 Speaker 1: it did help him because the jurors needed somebody to 210 00:11:17,520 --> 00:11:20,760 Speaker 1: fill in the gaps sort of, to explain how all 211 00:11:20,840 --> 00:11:24,160 Speaker 1: the gambling worked, and to explained how they would swap debt. 212 00:11:24,360 --> 00:11:27,320 Speaker 1: They would, you know, hold on to winnings for somebody 213 00:11:27,320 --> 00:11:30,640 Speaker 1: else for a while. You know, they would redirect payments from, 214 00:11:30,760 --> 00:11:33,040 Speaker 1: you know, somebody they had won from to pay a 215 00:11:33,040 --> 00:11:35,280 Speaker 1: debt that they owed somebody else. And he was able 216 00:11:35,320 --> 00:11:37,280 Speaker 1: to say, look, here's where all of the money went, 217 00:11:37,520 --> 00:11:40,440 Speaker 1: Here's who it belonged to. Hear who the investors were, 218 00:11:40,559 --> 00:11:42,800 Speaker 1: Here's who I paid out, and here's what I took 219 00:11:42,840 --> 00:11:44,599 Speaker 1: home At the end of the day, and there was 220 00:11:44,640 --> 00:11:46,360 Speaker 1: really nobody else that was going to be able to 221 00:11:46,360 --> 00:11:48,600 Speaker 1: do that but him. And the other thing is he 222 00:11:48,640 --> 00:11:52,840 Speaker 1: brought receipts. He has contemporaneous text messages. For example, the 223 00:11:52,880 --> 00:11:55,080 Speaker 1: bag of cash turns out it was alone, just so 224 00:11:55,160 --> 00:11:59,240 Speaker 1: he claims. And he's got contemporaneous text messages that reflect 225 00:11:59,320 --> 00:12:01,680 Speaker 1: that that was one loan he'd received and he was 226 00:12:01,679 --> 00:12:04,080 Speaker 1: going to receive the second loan. So basically borrowed like 227 00:12:04,120 --> 00:12:06,320 Speaker 1: a total of two million from one of his former 228 00:12:06,360 --> 00:12:09,040 Speaker 1: clients and fellow gamblers. As you know, he was able 229 00:12:09,080 --> 00:12:11,560 Speaker 1: to testify about things that they would have otherwise never 230 00:12:11,600 --> 00:12:13,360 Speaker 1: been able to get in that I think the jury 231 00:12:13,400 --> 00:12:14,160 Speaker 1: really needed to hear. 232 00:12:14,440 --> 00:12:16,280 Speaker 4: So it seems like the jury will get the case 233 00:12:16,320 --> 00:12:16,920 Speaker 4: next week. 234 00:12:17,360 --> 00:12:20,280 Speaker 1: On Tuesday, the defense has a few more witnesses and 235 00:12:20,440 --> 00:12:21,200 Speaker 1: tends to call. 236 00:12:21,360 --> 00:12:22,520 Speaker 5: Among them is. 237 00:12:22,800 --> 00:12:25,800 Speaker 1: The lead case agent and the government's case. That's interesting 238 00:12:25,920 --> 00:12:28,680 Speaker 1: because for lots of reasons, but in part because the 239 00:12:28,720 --> 00:12:30,920 Speaker 1: government did not call this agent in its case. 240 00:12:30,960 --> 00:12:33,319 Speaker 4: And she Holly, you'll have to tell us on Tuesday 241 00:12:33,679 --> 00:12:36,600 Speaker 4: what the government might have been trying to hide. Thanks 242 00:12:36,600 --> 00:12:40,400 Speaker 4: for taking us inside the courtroom. That's Bloomberg Law, Senior reporter, 243 00:12:40,679 --> 00:12:45,240 Speaker 4: Holly Barker coming up next. Luigi Manngioni has an outburst 244 00:12:45,320 --> 00:12:48,440 Speaker 4: in court after a state judge set the trial date 245 00:12:48,520 --> 00:12:51,480 Speaker 4: for one of his two trials. I'm June Grosso and 246 00:12:51,520 --> 00:12:54,120 Speaker 4: you're listening to Bloomberg arge. 247 00:12:54,240 --> 00:12:55,440 Speaker 5: Is the time of lenders? 248 00:12:55,679 --> 00:13:00,560 Speaker 6: University and old and laws or not? 249 00:13:00,679 --> 00:13:04,160 Speaker 5: Guns not. 250 00:13:05,480 --> 00:13:10,440 Speaker 4: Luigi Mangioni pleaded not guilty to murdering United Healthcare CEO 251 00:13:10,559 --> 00:13:14,959 Speaker 4: Brian Thompson in December of twenty twenty four. The public 252 00:13:15,000 --> 00:13:19,160 Speaker 4: hasn't heard much else from Mangoni until his outburst after 253 00:13:19,200 --> 00:13:22,680 Speaker 4: a tense hearing setting the date for his state murder trial. 254 00:13:23,000 --> 00:13:26,520 Speaker 4: As he was let out of the courtroom, Mangioni shouted, 255 00:13:26,760 --> 00:13:30,480 Speaker 4: it's the same trial twice. One plus one is two 256 00:13:31,120 --> 00:13:35,760 Speaker 4: double jeopardy by any common sense definition, and state and 257 00:13:35,880 --> 00:13:40,040 Speaker 4: federal prosecutors have been engaged in a virtual tug of 258 00:13:40,160 --> 00:13:44,000 Speaker 4: war over who will try Mangioni first, and even the 259 00:13:44,160 --> 00:13:48,160 Speaker 4: judges seem to be jockeying for position, with the state 260 00:13:48,280 --> 00:13:52,280 Speaker 4: judge setting a trial date of June eighth only after 261 00:13:52,360 --> 00:13:56,120 Speaker 4: the federal judge set a trial date of September eighth. 262 00:13:56,320 --> 00:13:59,920 Speaker 4: My guess, his former federal prosecutor Robert Mintz a part 263 00:14:00,160 --> 00:14:03,640 Speaker 4: at McCarter and English Bob. The state prosecutors and the 264 00:14:03,679 --> 00:14:07,559 Speaker 4: federal prosecutors have been fighting over who gets to bring 265 00:14:07,880 --> 00:14:12,200 Speaker 4: Mangione to trial first. Isn't that something that's usually worked 266 00:14:12,240 --> 00:14:14,520 Speaker 4: out beforehand by the prosecutors. 267 00:14:15,240 --> 00:14:19,040 Speaker 7: Generally, prosecutors do try to work together, and what they 268 00:14:19,080 --> 00:14:21,720 Speaker 7: do is they look at the federal case and the 269 00:14:21,840 --> 00:14:24,240 Speaker 7: charges that are brought there, they look at the state 270 00:14:24,320 --> 00:14:27,080 Speaker 7: case and the charges that are brought there, and they 271 00:14:27,080 --> 00:14:32,040 Speaker 7: make a decision objectively as to which office as the 272 00:14:32,120 --> 00:14:35,840 Speaker 7: stronger case and the higher likelihood of conviction. So, in 273 00:14:35,880 --> 00:14:39,320 Speaker 7: many cases, the state charges will have slightly different elements 274 00:14:39,400 --> 00:14:42,520 Speaker 7: than the federal charges, and the penalties may be different, 275 00:14:42,680 --> 00:14:47,160 Speaker 7: and so prosecutors will essentially agree which is the strongest 276 00:14:47,200 --> 00:14:50,160 Speaker 7: case and lead with that. In this case, there seems 277 00:14:50,160 --> 00:14:53,400 Speaker 7: to be no cooperation between the federal government and the 278 00:14:53,400 --> 00:14:56,800 Speaker 7: Manhattan DA's office, and there is a virtual tug of 279 00:14:56,840 --> 00:14:59,920 Speaker 7: war between the two, a battle as to which case 280 00:15:00,120 --> 00:15:03,320 Speaker 7: is going to be tried first. We even saw at 281 00:15:03,360 --> 00:15:06,320 Speaker 7: a hearing before the state court judge, the judge make 282 00:15:06,640 --> 00:15:11,200 Speaker 7: a very unusual comment saying that US prosecutors had essentially 283 00:15:11,320 --> 00:15:15,160 Speaker 7: reneged on an agreement to let the state trial proceed first. 284 00:15:15,560 --> 00:15:18,800 Speaker 7: So we're seeing here a very unusual situation where the 285 00:15:18,840 --> 00:15:22,200 Speaker 7: federal judge has set the trial date for September eighth, 286 00:15:22,520 --> 00:15:25,520 Speaker 7: which has prompted the state court judge to set a 287 00:15:25,640 --> 00:15:28,960 Speaker 7: June eighth trial so that the state court case can 288 00:15:29,080 --> 00:15:32,480 Speaker 7: proceed and be completed before the federal case goes to trial. 289 00:15:32,840 --> 00:15:38,120 Speaker 4: Yeah, aren't the judges also jocking for position a little bit? Here? 290 00:15:38,520 --> 00:15:41,400 Speaker 4: The federal judge said that she was proceeding as if 291 00:15:41,440 --> 00:15:44,840 Speaker 4: the federal case was the only case unless one of 292 00:15:44,880 --> 00:15:47,720 Speaker 4: the parties raised an issue with her, and the state 293 00:15:47,760 --> 00:15:50,800 Speaker 4: court judge only sets a trial date when it looks 294 00:15:50,840 --> 00:15:53,760 Speaker 4: like the federal trial may go first. How do judges 295 00:15:53,880 --> 00:15:57,720 Speaker 4: usually handle it when there are competing trials. 296 00:15:57,680 --> 00:16:01,920 Speaker 7: Well, just like with prosecutors offices, there is no set 297 00:16:02,120 --> 00:16:06,040 Speaker 7: process by which state and federal judges must interact with 298 00:16:06,080 --> 00:16:09,080 Speaker 7: one another in terms of setting trials or anything else. 299 00:16:09,320 --> 00:16:12,680 Speaker 7: It's just usually a pattern in practice that there was 300 00:16:12,760 --> 00:16:16,680 Speaker 7: some degree of cooperation and some understanding as to which 301 00:16:16,800 --> 00:16:19,880 Speaker 7: case should proceed first. Here we saw a case where 302 00:16:19,920 --> 00:16:23,280 Speaker 7: the state made the arrest first and their first appearance 303 00:16:23,360 --> 00:16:26,120 Speaker 7: was in state court. But then the case got somewhat 304 00:16:26,120 --> 00:16:29,520 Speaker 7: bogged down in state court, which has slowed that process, 305 00:16:29,760 --> 00:16:32,440 Speaker 7: and in fact, there was a hearing in December, an 306 00:16:32,480 --> 00:16:37,160 Speaker 7: important hearing regarding the exclusion of certain key evidence in 307 00:16:37,200 --> 00:16:42,160 Speaker 7: the case. State prosecutors had argued that evidence from the 308 00:16:42,240 --> 00:16:45,840 Speaker 7: backpack that was seized by police when mister Mangioni was 309 00:16:45,960 --> 00:16:49,880 Speaker 7: arrested at the McDonald's in Altoona should be admitted into evidence. 310 00:16:50,160 --> 00:16:54,280 Speaker 7: It includes some key evidence including a nine millimeter handgun, 311 00:16:54,440 --> 00:16:59,320 Speaker 7: a silencer, a loaded gun magazine, and a diary, which, 312 00:16:59,360 --> 00:17:04,840 Speaker 7: according to state prosecutors, include some very incriminating statements made 313 00:17:04,840 --> 00:17:09,399 Speaker 7: by mister Mangioni, including a comment that Brian Thompson quote 314 00:17:09,440 --> 00:17:13,320 Speaker 7: had it coming. So that's all very critical evidence to prosecutors, 315 00:17:13,480 --> 00:17:15,960 Speaker 7: and there was an extended hearing in December as to 316 00:17:15,960 --> 00:17:18,000 Speaker 7: whether or not that evidence was going to be admitted 317 00:17:18,200 --> 00:17:21,800 Speaker 7: into the state trial. The trial judge expects to rule 318 00:17:21,920 --> 00:17:25,040 Speaker 7: on that decision in May, so the trial judge is 319 00:17:25,080 --> 00:17:27,760 Speaker 7: taking some time to make what is a very critical 320 00:17:27,800 --> 00:17:30,920 Speaker 7: decision about what evidence may or may not be admitted 321 00:17:31,119 --> 00:17:35,720 Speaker 7: in the state court. Interestingly, the very same motion was 322 00:17:35,840 --> 00:17:38,680 Speaker 7: argued in front of the federal judge and the judge 323 00:17:38,840 --> 00:17:43,160 Speaker 7: rather expeditiously ruled that all of that evidence will be admitted, 324 00:17:43,240 --> 00:17:47,280 Speaker 7: denying the defense's argument that the police improperly searched the 325 00:17:47,320 --> 00:17:51,160 Speaker 7: bag without a warrant. So that case, in some sense. 326 00:17:51,160 --> 00:17:53,680 Speaker 5: Is teed up and ready to go because that. 327 00:17:53,680 --> 00:17:57,240 Speaker 7: Critical decision about what evidence may be admitted. The trial 328 00:17:57,359 --> 00:18:00,680 Speaker 7: has already been decided in federal court, but state court 329 00:18:00,760 --> 00:18:04,879 Speaker 7: prosecutors are adamant that their case should go first, based 330 00:18:04,920 --> 00:18:07,880 Speaker 7: on the theory that the New York Police Department investigated 331 00:18:07,920 --> 00:18:12,040 Speaker 7: the crime and federal prosecutors only became involved two weeks 332 00:18:12,080 --> 00:18:15,439 Speaker 7: after the murder. They say that they have a greater 333 00:18:15,640 --> 00:18:18,320 Speaker 7: stake in the case, and in fact, it's only the 334 00:18:18,359 --> 00:18:21,960 Speaker 7: state court case in which murder is being charged. It's 335 00:18:22,000 --> 00:18:26,680 Speaker 7: second degree murder. The federal charges are stalking charges, which 336 00:18:26,760 --> 00:18:30,240 Speaker 7: carry a serious penalty because as a result of the 337 00:18:30,320 --> 00:18:34,080 Speaker 7: stalking a death occurred, but the murder charges are only 338 00:18:34,119 --> 00:18:37,200 Speaker 7: the state court charges, and so state court prosecutors are 339 00:18:37,240 --> 00:18:39,919 Speaker 7: saying that the case should be tried in state court first, 340 00:18:40,200 --> 00:18:43,639 Speaker 7: and that federal prosecutors should try the case only after 341 00:18:43,960 --> 00:18:46,399 Speaker 7: the Manhattan Diie's office completes their prosecution. 342 00:18:47,080 --> 00:18:51,199 Speaker 4: Mangioni had an outburst in court saying this is double 343 00:18:51,320 --> 00:18:54,960 Speaker 4: jeopardy trying him twice. And the average person might look 344 00:18:55,000 --> 00:18:59,080 Speaker 4: at this and say, he's accused of committing one crime. 345 00:19:00,119 --> 00:19:04,520 Speaker 4: Are both state and federal prosecutors trying him for that crime? 346 00:19:04,920 --> 00:19:07,240 Speaker 4: So tell us about the law of double jeopardy and 347 00:19:07,280 --> 00:19:09,120 Speaker 4: why it just isn't that simple. 348 00:19:09,480 --> 00:19:13,760 Speaker 7: Yeah, double jeopardy is a nuanced concept in the law, 349 00:19:14,119 --> 00:19:18,399 Speaker 7: although it does have a common sense understanding. Basically, the 350 00:19:18,440 --> 00:19:22,760 Speaker 7: Fifth Amendment precludes a person from being prosecuted twice for 351 00:19:22,840 --> 00:19:26,359 Speaker 7: the same offense, but there are some exceptions, one of 352 00:19:26,359 --> 00:19:30,359 Speaker 7: them being separate sovereigns. So, for example, if the federal 353 00:19:30,400 --> 00:19:33,040 Speaker 7: government and the state government want to prosecute the same 354 00:19:33,119 --> 00:19:37,000 Speaker 7: defendants for the same act, often that has been permitted. 355 00:19:37,119 --> 00:19:39,119 Speaker 5: If you go back to the days of the civil. 356 00:19:38,920 --> 00:19:42,760 Speaker 7: Rights movement, you may remember instances where a white defendant 357 00:19:43,160 --> 00:19:45,919 Speaker 7: was tried for the murder of a black person and 358 00:19:46,000 --> 00:19:48,959 Speaker 7: acquitted in state court, and then we saw federal prosecutors 359 00:19:49,280 --> 00:19:53,280 Speaker 7: come in and essentially tried the case again, alleging civil 360 00:19:53,359 --> 00:19:56,960 Speaker 7: rights violations in federal court and often could get convictions 361 00:19:57,000 --> 00:20:00,320 Speaker 7: in federal court when state court convictions were are not 362 00:20:00,480 --> 00:20:03,679 Speaker 7: possible due to the makeup of the jury pool. So 363 00:20:04,160 --> 00:20:08,119 Speaker 7: there is a long history of cases that are substantially 364 00:20:08,200 --> 00:20:12,560 Speaker 7: similar being tried by different sovereigns, the federal government and 365 00:20:12,640 --> 00:20:17,040 Speaker 7: the state government. Interestingly, on the federal level, double jeopardy 366 00:20:17,080 --> 00:20:20,080 Speaker 7: is controlled by a nineteen thirty two case called Blockbuster 367 00:20:20,240 --> 00:20:23,840 Speaker 7: versus the United States that basically says that if there 368 00:20:23,880 --> 00:20:28,080 Speaker 7: are different statutory elements of a crime, then you can 369 00:20:28,080 --> 00:20:28,800 Speaker 7: be tried. 370 00:20:28,560 --> 00:20:29,520 Speaker 5: In separate cases. 371 00:20:29,640 --> 00:20:31,479 Speaker 7: So, in other words, if in state court you're being 372 00:20:31,560 --> 00:20:34,680 Speaker 7: tried for murder and there's certain elements to convict somebody 373 00:20:34,960 --> 00:20:38,040 Speaker 7: for murder, but you're being tried in federal court or 374 00:20:38,119 --> 00:20:41,320 Speaker 7: violations of someone's civil rights, and there are different elements, 375 00:20:41,359 --> 00:20:45,040 Speaker 7: in other words, prosecutors have to prove different facts in 376 00:20:45,160 --> 00:20:48,160 Speaker 7: order to gain a conviction, then those are considered separate 377 00:20:48,200 --> 00:20:51,679 Speaker 7: crimes and do not violate the double jeopardy clause. In 378 00:20:51,760 --> 00:20:55,360 Speaker 7: New York State, however, the laws of double jeopardy are 379 00:20:55,440 --> 00:20:59,520 Speaker 7: actually broader than the protection that the federal Constitution applies, 380 00:20:59,800 --> 00:21:03,760 Speaker 7: and and that's why we're seeing this interesting interplay between 381 00:21:03,800 --> 00:21:08,640 Speaker 7: the Mangone defense and federal prosecutors saying that they would 382 00:21:08,760 --> 00:21:12,200 Speaker 7: rather be tried in federal court first, because that will 383 00:21:12,280 --> 00:21:15,200 Speaker 7: give them at least an argument that the New York 384 00:21:15,280 --> 00:21:18,679 Speaker 7: state case should be blocked by the double jeopardy clause 385 00:21:19,000 --> 00:21:21,480 Speaker 7: if the federal case proceeds first, and. 386 00:21:21,480 --> 00:21:24,399 Speaker 4: Explain why the New York double jeopardy law is better 387 00:21:24,440 --> 00:21:25,240 Speaker 4: for the defense. 388 00:21:25,880 --> 00:21:29,040 Speaker 7: The New York State double jeopardy law is broader than 389 00:21:29,080 --> 00:21:32,639 Speaker 7: the federal constitution because under federal law, it looks at 390 00:21:32,640 --> 00:21:35,800 Speaker 7: that blockbuster test, which is only looking at elements of 391 00:21:35,840 --> 00:21:39,080 Speaker 7: a crime, while the New York state law looks at 392 00:21:39,080 --> 00:21:42,840 Speaker 7: the second prosecution as the same offense or the same 393 00:21:42,960 --> 00:21:46,800 Speaker 7: criminal transaction, and so it gives defense lawyers a chance 394 00:21:46,840 --> 00:21:50,119 Speaker 7: to argue that even though the elements may be different, 395 00:21:50,320 --> 00:21:53,480 Speaker 7: it's really the same offense and the same criminal transaction. 396 00:21:54,040 --> 00:21:56,320 Speaker 7: In this case, my opinion is it will be an 397 00:21:56,359 --> 00:21:59,639 Speaker 7: uphill battle for the Mangoy defense team to convince the 398 00:21:59,680 --> 00:22:01,880 Speaker 7: court that the New York state case is barred by 399 00:22:01,880 --> 00:22:05,080 Speaker 7: double jeopardy, but there's no question that they will have 400 00:22:05,119 --> 00:22:08,920 Speaker 7: a better argument if the federal case proceeds first, and 401 00:22:08,960 --> 00:22:11,760 Speaker 7: then they are in state court arguing that the state 402 00:22:11,840 --> 00:22:15,240 Speaker 7: prosecution is barred by the prior federal prosecution. 403 00:22:15,680 --> 00:22:18,920 Speaker 4: The defense attorney complained about the timing of the trials 404 00:22:19,040 --> 00:22:22,200 Speaker 4: right now, they're three months apart if they go off 405 00:22:22,240 --> 00:22:26,560 Speaker 4: as scheduled. Karen Friedman Agnifolo told the State Court judge 406 00:22:26,600 --> 00:22:30,560 Speaker 4: Gregory Caro the defense will not be ready on June eighth, 407 00:22:30,640 --> 00:22:34,600 Speaker 4: and Judge Caro said be ready. Basically, having to prepare 408 00:22:34,640 --> 00:22:38,200 Speaker 4: for two trials at once does seem like a lot 409 00:22:38,280 --> 00:22:40,119 Speaker 4: for one defense team. 410 00:22:40,200 --> 00:22:44,800 Speaker 7: Generally, judges are pretty solicitous of defense lawyers who say 411 00:22:44,840 --> 00:22:48,280 Speaker 7: they need additional time to prepare for a trial, because 412 00:22:48,320 --> 00:22:50,800 Speaker 7: what the judge does not want have happened is they 413 00:22:50,840 --> 00:22:54,480 Speaker 7: go through an entire trial and ultimately there's a conviction, 414 00:22:54,840 --> 00:22:58,040 Speaker 7: and then on appeal, the higher court looks at the 415 00:22:58,080 --> 00:23:02,600 Speaker 7: case and decides that the defense was not provided adequate 416 00:23:02,680 --> 00:23:06,000 Speaker 7: time to prepare for the defense, and the whole case 417 00:23:06,280 --> 00:23:09,399 Speaker 7: gets thrown out and has to be retried again. So 418 00:23:09,480 --> 00:23:12,960 Speaker 7: what we're seeing here is that the federal judge set 419 00:23:13,000 --> 00:23:16,639 Speaker 7: that September eighth date for the federal trial, and the 420 00:23:16,640 --> 00:23:20,240 Speaker 7: state court judge then counted backwards from that date in 421 00:23:20,359 --> 00:23:23,600 Speaker 7: order to set a trial beginning on June eighth, to 422 00:23:23,680 --> 00:23:26,640 Speaker 7: allow that trial to be completed first. But as you say, 423 00:23:26,680 --> 00:23:29,919 Speaker 7: the defense has strenuously argued that they will not be 424 00:23:30,080 --> 00:23:33,480 Speaker 7: ready by June eighth, and that it isn't undue burden 425 00:23:33,600 --> 00:23:36,480 Speaker 7: for them to have to try the state court case 426 00:23:36,880 --> 00:23:40,040 Speaker 7: only to then, approximately three weeks later, have to be 427 00:23:40,080 --> 00:23:43,159 Speaker 7: sitting in federal court ready for another trial. What the 428 00:23:43,200 --> 00:23:47,639 Speaker 7: defense is arguing is that the defense team is unfairly 429 00:23:47,680 --> 00:23:50,640 Speaker 7: burdened because they have to prepare for two trials, while 430 00:23:50,680 --> 00:23:54,240 Speaker 7: prosecutors only have to prepare for one trial each. 431 00:23:54,760 --> 00:23:57,480 Speaker 4: Also, Bob, you talked before about how the state court 432 00:23:57,600 --> 00:24:01,639 Speaker 4: judge hasn't decided yet about what whether that critical evidence 433 00:24:01,680 --> 00:24:05,120 Speaker 4: from the backpack will come in at trial. Judge Caro 434 00:24:05,240 --> 00:24:08,600 Speaker 4: said he's going to make the decision by May eighteenth, 435 00:24:08,760 --> 00:24:11,760 Speaker 4: but they're supposed to go to trial just three weeks later. 436 00:24:12,040 --> 00:24:14,840 Speaker 4: Even though it's unlikely that the judge is going to 437 00:24:14,920 --> 00:24:19,760 Speaker 4: suppress that critical evidence, shouldn't the defense know that definitively 438 00:24:20,080 --> 00:24:21,639 Speaker 4: while they're preparing for trial. 439 00:24:21,880 --> 00:24:25,400 Speaker 7: You're exactly right, and the federal judge has already occurred 440 00:24:25,640 --> 00:24:28,800 Speaker 7: argument on that very issue and allow that evidence to 441 00:24:28,840 --> 00:24:31,520 Speaker 7: be admitted, So I think we can expect the state 442 00:24:31,560 --> 00:24:34,399 Speaker 7: Cork judge to rule the same way. It would be 443 00:24:34,400 --> 00:24:37,760 Speaker 7: a devastating blow to prosecutors if the state cort judge 444 00:24:37,880 --> 00:24:40,840 Speaker 7: were to suppress that critical evidence, and it would make 445 00:24:40,880 --> 00:24:43,080 Speaker 7: it much more difficult for them to gain a conviction. 446 00:24:43,400 --> 00:24:46,639 Speaker 7: But nonetheless, from the defense standpoint, if you don't know 447 00:24:46,720 --> 00:24:49,199 Speaker 7: for sure where that evidence is coming in until the 448 00:24:49,200 --> 00:24:51,479 Speaker 7: middle of May and you've got to begin a trial 449 00:24:51,680 --> 00:24:54,119 Speaker 7: in the beginning of June, it doesn't give you a 450 00:24:54,119 --> 00:24:57,120 Speaker 7: lot of time to reset your case and to prepare 451 00:24:57,160 --> 00:25:00,000 Speaker 7: for trial. And that's exactly what they're going to argue. 452 00:25:00,280 --> 00:25:02,600 Speaker 7: So it's going to be very interesting to see whether 453 00:25:02,640 --> 00:25:06,000 Speaker 7: these dates hold. One possible issue that could push the 454 00:25:06,080 --> 00:25:10,800 Speaker 7: dates back is that if federal prosecutors decide to appeal 455 00:25:10,960 --> 00:25:14,480 Speaker 7: the federal judges' decision to throw out the death penalty 456 00:25:14,560 --> 00:25:17,680 Speaker 7: charge in the federal case, the state court judge said 457 00:25:17,680 --> 00:25:21,119 Speaker 7: that he would likewise move back the start of the 458 00:25:21,160 --> 00:25:22,159 Speaker 7: state court trial. 459 00:25:22,480 --> 00:25:25,360 Speaker 4: It wouldn't be the first time or the last that 460 00:25:25,400 --> 00:25:29,080 Speaker 4: we see delays in trial dates. Thanks so much, Bob. 461 00:25:29,440 --> 00:25:34,000 Speaker 4: That's Robert Mince of Macarter and English. After widespread criticism 462 00:25:34,080 --> 00:25:38,800 Speaker 4: of the aggressive tactics by federal immigration agents in Minnesota 463 00:25:38,880 --> 00:25:43,480 Speaker 4: that left two US citizens dead and spurred massive protests, 464 00:25:43,720 --> 00:25:46,719 Speaker 4: it came as no surprise. When White House borders are 465 00:25:46,880 --> 00:25:50,280 Speaker 4: Tom Homan announced the end of the operation, although he 466 00:25:50,440 --> 00:25:53,800 Speaker 4: was careful to say that ICE will not be backing down. 467 00:25:54,280 --> 00:25:56,840 Speaker 3: If you're hearing the country legally, you're not an exempt 468 00:25:56,840 --> 00:26:00,440 Speaker 3: from our immigration loans. If we encounter you, will take 469 00:26:00,440 --> 00:26:04,800 Speaker 3: appropriate enforcement action. But also say we are backing down 470 00:26:04,840 --> 00:26:08,560 Speaker 3: from immigration enforcement or the promise of mass deportations, you 471 00:26:08,600 --> 00:26:09,440 Speaker 3: are simply wrong. 472 00:26:09,760 --> 00:26:13,320 Speaker 4: What's been missing in all the criticism of federal immigration 473 00:26:13,480 --> 00:26:17,960 Speaker 4: operations is a policy that affects every non citizen detained 474 00:26:17,960 --> 00:26:23,159 Speaker 4: by ICE, the Trump Administration's mandatory detention policy. It's a 475 00:26:23,200 --> 00:26:27,679 Speaker 4: reversal of every other administration's policy for the last thirty years. 476 00:26:28,119 --> 00:26:33,120 Speaker 4: The Trump administration is locking up all non citizens without 477 00:26:33,119 --> 00:26:37,639 Speaker 4: hearings indefinitely, even if they've lived in this country for decades. 478 00:26:37,920 --> 00:26:41,080 Speaker 4: And in a huge win for the administration, the ultra 479 00:26:41,200 --> 00:26:46,440 Speaker 4: conservative Fifth Circuit Court of Appeals just greenlit that mandatory 480 00:26:46,480 --> 00:26:50,280 Speaker 4: detention policy. Joining me is Leon Fresco, a partner at 481 00:26:50,280 --> 00:26:52,399 Speaker 4: Holland and Knight. He was the former head of the 482 00:26:52,400 --> 00:26:56,840 Speaker 4: Office of Immigration Litigation during the Obama administration. Lee on 483 00:26:56,920 --> 00:26:59,840 Speaker 4: both the Fifth and the Seventh Circuit had arguments on 484 00:27:00,080 --> 00:27:03,280 Speaker 4: this policy on the same day. The Fifth Circuit made 485 00:27:03,320 --> 00:27:06,600 Speaker 4: its decision within days. The Seventh Circuit has yet to 486 00:27:06,640 --> 00:27:09,560 Speaker 4: make a decision. How big a victory is this decision 487 00:27:09,640 --> 00:27:10,920 Speaker 4: for the Trump administration. 488 00:27:11,480 --> 00:27:14,320 Speaker 2: The reason it's a big victory is because most of 489 00:27:14,359 --> 00:27:17,760 Speaker 2: the detention facilities in the United States are in the 490 00:27:17,760 --> 00:27:22,440 Speaker 2: Fifth Circuit Texas, Louisiana, and Mississippi. It's a big part 491 00:27:22,520 --> 00:27:26,360 Speaker 2: of the detention infrastructure of the United States is actually 492 00:27:26,400 --> 00:27:29,879 Speaker 2: in those locations. And so what the Fifth Circuit held 493 00:27:30,359 --> 00:27:35,360 Speaker 2: is that if a person crossed the border illegally and 494 00:27:35,640 --> 00:27:39,200 Speaker 2: entered the United States illegally, if and when the United 495 00:27:39,200 --> 00:27:42,920 Speaker 2: States government finally apprehends them, whether it's two days later, 496 00:27:43,320 --> 00:27:46,679 Speaker 2: ten days later, one year later, twenty years later, forty 497 00:27:46,760 --> 00:27:50,160 Speaker 2: years later, none of that matters. What matters is that 498 00:27:50,240 --> 00:27:54,160 Speaker 2: they were apprehended when they had crossed the border illegally. 499 00:27:54,880 --> 00:27:58,000 Speaker 2: And so under the version of the statute that the 500 00:27:58,040 --> 00:28:01,560 Speaker 2: Trump administration and the Fifth and feel is the correct 501 00:28:01,600 --> 00:28:04,880 Speaker 2: interpretation of the statue, they say that no matter when 502 00:28:04,920 --> 00:28:09,280 Speaker 2: you're apprehended, if you've crossed illegally, your intent is you're 503 00:28:09,440 --> 00:28:13,800 Speaker 2: trying still every day of your life to be admitted 504 00:28:13,840 --> 00:28:16,639 Speaker 2: into the United States. Legally that this is your goal, 505 00:28:16,960 --> 00:28:19,879 Speaker 2: because the statue says, if you're seeking admission into the 506 00:28:19,960 --> 00:28:23,439 Speaker 2: United States, then if you get apprehended, you will be 507 00:28:23,560 --> 00:28:27,560 Speaker 2: detained indefinitely without bond until we decide whether you win 508 00:28:28,040 --> 00:28:32,399 Speaker 2: or lose your deportation case. Previously, for the last thirty years, 509 00:28:32,600 --> 00:28:36,479 Speaker 2: all the administrations prior to this said that at a 510 00:28:36,520 --> 00:28:39,600 Speaker 2: certain point, after you cross the border, you're no longer 511 00:28:39,600 --> 00:28:43,320 Speaker 2: seeking admission, you're just here in the country. And that 512 00:28:43,400 --> 00:28:46,480 Speaker 2: seeking admission is only for people apprehended at or near 513 00:28:46,600 --> 00:28:49,480 Speaker 2: the border right when they're trying to cross. It's not 514 00:28:49,520 --> 00:28:52,320 Speaker 2: for people who've been here an extended period of time. 515 00:28:52,720 --> 00:28:57,040 Speaker 2: Those people are entitled to bond. And so this is 516 00:28:57,080 --> 00:29:00,520 Speaker 2: a new interpretation that's different than what has occurred in 517 00:29:00,600 --> 00:29:03,880 Speaker 2: the last thirty years. And so what the Fifth Circuit. 518 00:29:03,560 --> 00:29:06,360 Speaker 8: Has said is absolutely if someone is in detention in 519 00:29:06,440 --> 00:29:09,680 Speaker 8: the Fifth Circuit and they cross the border illegally, it 520 00:29:09,720 --> 00:29:12,520 Speaker 8: does not matter how long they've been in the country, 521 00:29:12,560 --> 00:29:16,160 Speaker 8: they can be detained without bond until they can finally 522 00:29:16,200 --> 00:29:16,800 Speaker 8: be deported. 523 00:29:17,360 --> 00:29:21,760 Speaker 4: And if the Seventh Circuit comes out with a contrary decision, 524 00:29:22,280 --> 00:29:25,680 Speaker 4: it won't make that much difference because not that many 525 00:29:25,720 --> 00:29:29,600 Speaker 4: people are held in detention in the territory of the 526 00:29:29,600 --> 00:29:30,480 Speaker 4: Seventh Circuit. 527 00:29:30,920 --> 00:29:34,040 Speaker 2: Correct. What's very interesting about this is usually the government 528 00:29:34,160 --> 00:29:37,520 Speaker 2: is motivated to go to the Supreme Court whenever it's 529 00:29:37,560 --> 00:29:40,880 Speaker 2: got bad law. But it would be very interesting if 530 00:29:40,960 --> 00:29:44,520 Speaker 2: what will have to happen is that the Fifth Circuit 531 00:29:45,040 --> 00:29:48,640 Speaker 2: petitioners the foreign nationals will have to go to the 532 00:29:48,640 --> 00:29:51,880 Speaker 2: Supreme Court and hope that the Supreme Court takes the case, 533 00:29:51,960 --> 00:29:55,400 Speaker 2: because usually the Supreme Court only takes these cases for 534 00:29:55,400 --> 00:29:58,400 Speaker 2: the most part, because the Department of Justice is asking 535 00:29:58,440 --> 00:30:01,040 Speaker 2: them to take the case. Almost always, when the Department 536 00:30:01,120 --> 00:30:03,320 Speaker 2: of Justice wants the Supreme Court to take a case, 537 00:30:03,760 --> 00:30:06,400 Speaker 2: they take it. But the Department of Justice may say, 538 00:30:06,400 --> 00:30:08,280 Speaker 2: you know what, if we lose in the Seventh Circuit 539 00:30:08,640 --> 00:30:11,360 Speaker 2: or the Ninth Circuit, no big deal. We'll just put 540 00:30:11,360 --> 00:30:15,320 Speaker 2: the visa overstate people in detention in those facilities and 541 00:30:15,480 --> 00:30:17,320 Speaker 2: they can get a bond and it's not a big 542 00:30:17,360 --> 00:30:20,280 Speaker 2: deal and whatever. But for the people we want to 543 00:30:20,360 --> 00:30:24,600 Speaker 2: keep in detention as the border crossers, we will put 544 00:30:24,600 --> 00:30:27,800 Speaker 2: them in detention in the Fifth Circuit, and that way 545 00:30:27,840 --> 00:30:30,840 Speaker 2: they won't be able to have a habeas petition. And 546 00:30:30,920 --> 00:30:33,080 Speaker 2: if the Supreme Court never takes this case, then that 547 00:30:33,160 --> 00:30:34,080 Speaker 2: can't be fixed. 548 00:30:34,360 --> 00:30:37,640 Speaker 4: And I've heard that when immigrants are released while their 549 00:30:37,720 --> 00:30:41,280 Speaker 4: case is pending, their odds of winning improve. 550 00:30:41,880 --> 00:30:46,719 Speaker 2: There's two sort of big dramatic complications when immigration detention 551 00:30:46,960 --> 00:30:49,640 Speaker 2: is involved. One to the extent that you have family 552 00:30:50,000 --> 00:30:53,360 Speaker 2: and friends and everybody else. You're separated from them, and 553 00:30:53,480 --> 00:30:56,560 Speaker 2: you're separated from your source of income, which makes it 554 00:30:56,600 --> 00:30:58,520 Speaker 2: harder for you to even hire a lawyer in the 555 00:30:58,520 --> 00:31:00,640 Speaker 2: first place. So you may not have a lawyer because 556 00:31:00,640 --> 00:31:03,080 Speaker 2: you can't afford a lawyer. That's bad enough, but then 557 00:31:03,080 --> 00:31:04,920 Speaker 2: it gets even worse, which is, even if you have 558 00:31:05,000 --> 00:31:09,120 Speaker 2: a lawyer, the lawyer now has to communicate with you 559 00:31:09,160 --> 00:31:13,560 Speaker 2: basically through ICE, whatever ICE decides to allow you to 560 00:31:13,600 --> 00:31:16,800 Speaker 2: be able to communicate with your lawyer. So you know, 561 00:31:16,920 --> 00:31:19,680 Speaker 2: most of these detention facilities are in the middle of nowhere, 562 00:31:19,680 --> 00:31:22,479 Speaker 2: they're not near any lawyers, and so very few lawyers 563 00:31:22,520 --> 00:31:25,880 Speaker 2: are driving out or flying hours and hours. Usually what 564 00:31:25,920 --> 00:31:29,120 Speaker 2: you're having to do is set up conferences. So all 565 00:31:29,160 --> 00:31:31,040 Speaker 2: of that makes it very very hard. If you're trying 566 00:31:31,080 --> 00:31:34,120 Speaker 2: to prepare let's say an asylum application, you'd be with 567 00:31:34,160 --> 00:31:38,960 Speaker 2: your client maybe eight to sixteen hours getting their whole story, 568 00:31:39,560 --> 00:31:44,320 Speaker 2: documenting it, trying to really set forward a case, and 569 00:31:44,360 --> 00:31:46,320 Speaker 2: you just don't have the ability to do any of 570 00:31:46,320 --> 00:31:49,400 Speaker 2: that if your client is in detention. So it basically 571 00:31:49,520 --> 00:31:52,840 Speaker 2: is like saying, fine, we're gonna let you play basketball, 572 00:31:52,880 --> 00:31:55,680 Speaker 2: but you can't use your left arm or your right leg. 573 00:31:55,800 --> 00:31:58,040 Speaker 2: Good luck deals see if you can win this match 574 00:31:58,400 --> 00:32:02,000 Speaker 2: against Shaquille O'Neill or something like that. 575 00:32:02,280 --> 00:32:06,400 Speaker 4: Impossible odds there. Leon federal courts have been flooded with 576 00:32:06,560 --> 00:32:11,320 Speaker 4: habeas petitions to force bond hearings. According to Pro Publica, 577 00:32:11,560 --> 00:32:15,680 Speaker 4: more than eighteen thousand habeas petitions have been filed in 578 00:32:15,720 --> 00:32:19,040 Speaker 4: the first thirteen months of Trump's second term, and that's 579 00:32:19,040 --> 00:32:22,920 Speaker 4: more than we're filed in the last three administrations combined. 580 00:32:23,480 --> 00:32:27,120 Speaker 4: Will this Fifth Circuit decision stop that flood tuv You're. 581 00:32:27,000 --> 00:32:30,520 Speaker 2: In the Fifth Circuit, absolutely, because that becomes binding President, 582 00:32:30,600 --> 00:32:33,160 Speaker 2: So none of those habeas petitions will work in the 583 00:32:33,240 --> 00:32:37,040 Speaker 2: district courts in Texas, Mississippi, and Louisiana. If you are 584 00:32:37,080 --> 00:32:40,560 Speaker 2: in other district courts around the country, the problem you 585 00:32:40,640 --> 00:32:43,120 Speaker 2: have is that that Fifth Circuit decision could be cited 586 00:32:43,160 --> 00:32:47,280 Speaker 2: as persuasive and maybe the particular district judge who's listening 587 00:32:47,360 --> 00:32:50,400 Speaker 2: to the case will find it persuasive, and then you'll 588 00:32:50,440 --> 00:32:52,480 Speaker 2: need to go to the Circuit court and we'll have 589 00:32:52,560 --> 00:32:55,320 Speaker 2: to see what happens. But the other problem that could 590 00:32:55,360 --> 00:32:58,800 Speaker 2: happen is the government can try to move you and 591 00:32:58,880 --> 00:33:01,200 Speaker 2: get your habeas disc and then the court would have 592 00:33:01,240 --> 00:33:04,160 Speaker 2: to decide whether once to keep behaviors or not. So 593 00:33:04,200 --> 00:33:08,840 Speaker 2: there's just too much uncertainty and procedural machinations that can 594 00:33:08,880 --> 00:33:11,880 Speaker 2: occur in all of these cases where at the end 595 00:33:11,880 --> 00:33:14,640 Speaker 2: of the day, many many of these foreign nationals involved, 596 00:33:14,720 --> 00:33:18,000 Speaker 2: unless they get some very committed pro bono project, are 597 00:33:18,040 --> 00:33:20,120 Speaker 2: not going to have the resources to make all of 598 00:33:20,120 --> 00:33:20,960 Speaker 2: these challenges. 599 00:33:21,200 --> 00:33:22,840 Speaker 4: It homo sounds like game over. 600 00:33:23,480 --> 00:33:27,600 Speaker 6: I mean, the only way that this detention issue will 601 00:33:27,680 --> 00:33:31,000 Speaker 6: change is if the Supreme Court gets involved and says 602 00:33:31,040 --> 00:33:33,120 Speaker 6: that the Fifth Circuit got it wrong. But if the 603 00:33:33,120 --> 00:33:36,640 Speaker 6: Fifth Circuit decision stands, then what you will see as 604 00:33:36,680 --> 00:33:40,800 Speaker 6: the entire detention infrastructure of America moved to the Fifth 605 00:33:40,800 --> 00:33:43,200 Speaker 6: Circuit and then that will be how it operates. 606 00:33:43,400 --> 00:33:47,360 Speaker 4: And another problem is that attorneys are struggling just to 607 00:33:47,480 --> 00:33:51,640 Speaker 4: find their immigrant clients who've been detained because they've often 608 00:33:51,680 --> 00:33:55,280 Speaker 4: been moved to out of state facilities and then bounced around. 609 00:33:55,440 --> 00:33:58,200 Speaker 4: An ACLU lawyer called it a game of whack a 610 00:33:58,240 --> 00:34:01,720 Speaker 4: mole from the beginning. You can't find your clients. If 611 00:34:01,720 --> 00:34:04,560 Speaker 4: you find them, you can't access them because there are 612 00:34:04,600 --> 00:34:08,200 Speaker 4: no phones or visitation rooms. And if you do find them, 613 00:34:08,400 --> 00:34:12,120 Speaker 4: it takes weeks to contact them, and sometimes they're just 614 00:34:12,400 --> 00:34:13,680 Speaker 4: moved and deported. 615 00:34:14,400 --> 00:34:18,359 Speaker 2: Absolutely, if you are a representative of a person, a 616 00:34:18,360 --> 00:34:22,400 Speaker 2: foreign national who's in immigration detention, it's the most challenging 617 00:34:22,480 --> 00:34:25,000 Speaker 2: time it's ever been to do that, in the sense 618 00:34:25,120 --> 00:34:27,920 Speaker 2: that when you're a criminal, Let's say, when you're a 619 00:34:27,920 --> 00:34:31,160 Speaker 2: criminal and you're in detention, you're usually in detention within 620 00:34:31,239 --> 00:34:35,920 Speaker 2: some reasonable space from your attorney, and a criminal defense 621 00:34:35,960 --> 00:34:39,080 Speaker 2: can be planned and a criminal defense can be implemented 622 00:34:39,520 --> 00:34:43,280 Speaker 2: in a court of law. Here, if you lived in 623 00:34:43,600 --> 00:34:46,840 Speaker 2: I don't know, Houston, or you lived in Atlanta, or 624 00:34:46,880 --> 00:34:49,480 Speaker 2: you lived in New York, you could be detained in 625 00:34:49,760 --> 00:34:54,600 Speaker 2: Kansas or in Louisiana or something, and then whatever lawyer 626 00:34:54,640 --> 00:34:56,879 Speaker 2: you would have procured wouldn't have done you any good, 627 00:34:56,960 --> 00:34:59,799 Speaker 2: because that lawyer is not going to travel to Louisiana 628 00:34:59,920 --> 00:35:02,879 Speaker 2: or Mississippi or somewhere else in order to be able 629 00:35:03,040 --> 00:35:05,680 Speaker 2: to reach you, and then even if they did, you 630 00:35:05,800 --> 00:35:08,800 Speaker 2: might be moved the next day. And so the question 631 00:35:08,880 --> 00:35:12,280 Speaker 2: of how you actually conduct the defense when you can't 632 00:35:12,280 --> 00:35:15,719 Speaker 2: speak to a lawyer is very, very complicated. And this 633 00:35:15,800 --> 00:35:18,799 Speaker 2: is yet another issue that is going to have to 634 00:35:18,880 --> 00:35:22,439 Speaker 2: come to some resolution because people are going to start 635 00:35:22,480 --> 00:35:25,680 Speaker 2: saying that they've had due process violations, and the courts 636 00:35:25,680 --> 00:35:27,920 Speaker 2: are going to have to decide what is the process 637 00:35:27,920 --> 00:35:31,280 Speaker 2: that you're due In these situations. 638 00:35:30,880 --> 00:35:35,600 Speaker 4: Even when ICE does release detainees, judges are finding that 639 00:35:36,160 --> 00:35:39,560 Speaker 4: they're releasing them in other states without their papers or 640 00:35:39,680 --> 00:35:42,239 Speaker 4: phones and with just the clothes on their back. So 641 00:35:42,440 --> 00:35:47,160 Speaker 4: some judges have been issuing very detailed orders. For example, 642 00:35:47,360 --> 00:35:51,560 Speaker 4: one Minnesota judge said ICE had to release a detainee 643 00:35:51,880 --> 00:35:56,279 Speaker 4: one in Minnesota, two with all personal documents and belongings 644 00:35:56,320 --> 00:35:59,919 Speaker 4: such as driver's license, cell phone, three without conditions such 645 00:36:00,160 --> 00:36:04,440 Speaker 4: ankle monitors or tracking devices, and for with all clothing 646 00:36:04,520 --> 00:36:07,080 Speaker 4: and outer wear he was wearing at the time of 647 00:36:07,120 --> 00:36:09,680 Speaker 4: detention or other proper winter attire. 648 00:36:10,160 --> 00:36:12,600 Speaker 2: And this is not new. This is something I remember 649 00:36:12,640 --> 00:36:14,560 Speaker 2: from the very first case that I won with a 650 00:36:14,600 --> 00:36:17,600 Speaker 2: client in detention a long long time ago. I won't 651 00:36:17,640 --> 00:36:21,160 Speaker 2: date myself. I remember speaking to a senior lawyer and 652 00:36:21,200 --> 00:36:22,880 Speaker 2: I said, what do I do now, and they said, no, 653 00:36:23,000 --> 00:36:25,880 Speaker 2: when you win a case and your client is in detention, 654 00:36:26,320 --> 00:36:28,400 Speaker 2: what ICE does is they just opened the door of 655 00:36:28,440 --> 00:36:30,960 Speaker 2: the facility and so you better go get them because 656 00:36:31,040 --> 00:36:33,319 Speaker 2: my client was in the middle of the Everglades and 657 00:36:33,400 --> 00:36:35,360 Speaker 2: so they either are going to walk from the middle 658 00:36:35,400 --> 00:36:38,680 Speaker 2: of the Everglades into civilization or somebody has to go 659 00:36:38,760 --> 00:36:41,120 Speaker 2: get them. This is not new. This has always been 660 00:36:41,239 --> 00:36:44,640 Speaker 2: that way. That all ICE does is open the door 661 00:36:44,719 --> 00:36:48,680 Speaker 2: of the detention facility and say, okay, walk out of here. 662 00:36:49,280 --> 00:36:52,160 Speaker 4: And I thought it was something new. Thanks so much, Leon. 663 00:36:52,640 --> 00:36:56,120 Speaker 4: That's Leon Fresco of Holland and Night and that's it 664 00:36:56,200 --> 00:36:58,759 Speaker 4: for this edition of The Bloomberg Law Show. Remember you 665 00:36:58,800 --> 00:37:01,280 Speaker 4: can always get the latest legal news on our Bloomberg 666 00:37:01,360 --> 00:37:04,960 Speaker 4: Law podcasts. You can find them on Apple Podcasts, Spotify, 667 00:37:05,160 --> 00:37:10,200 Speaker 4: and at www dot Bloomberg dot com, Slash podcast Slash Law, 668 00:37:10,600 --> 00:37:13,160 Speaker 4: and remember to tune into The Bloomberg Law Show every 669 00:37:13,239 --> 00:37:17,160 Speaker 4: weeknight at ten pm Wall Street Time. I'm June Grosso 670 00:37:17,280 --> 00:37:18,880 Speaker 4: and you're listening to Bloomberg