number seventeen two one four six united states the gholson the strip benjamin orders i'd like to thank the panel and before i begin i need to say that i'm here and this is a hard fought case i deeply respect the senior judge brack and morris and all and but i believe that this trial showed that there was mr dalton's right to present a defense and was violated and how do you know that i think you know that by looking at the record in the way that it played out the government says  real notes or the corps didn't do through i think that when it when you look at what happened you got the government is the only party to the case can provide immunity to somebody in the third circuit was the in he says what's happened there threatening the prosecute me if i testify and i think stan that that can ever be a meaningful consultation that is done usually in the as a rooms of the court where somebody says well i'm telling you right now don't testify we saw that or other things huge i think marina bot is is mine has to be focused on all the threats that happened when she interviewed with an agent working the threats of the d n a testing that the government knew had borne out evidence that would have contradicted the government's main evidence and i think that that is because here marina vytas was the only person who could have provided testimony that the michael doll did not know about the weapons the weapons that were located in the dresser drawers and she testified behind a curtain they were located that was where the photo showed that they were located the test are i disagree i think there's only two versions she said that there were no weapons in the house on august twenty eighth and then in her inner interview agent mccain she said there are weapons in the house that belonged to somebody else she did not deny that those were weapons in the house she simply said that those were weapons along somebody else and that michael bolton did not know about this and i think that i mean when the point is still the same though isn't it i mean aren't those inconsistent stuart stories something to be considered about how important a witness she would be government alleged i think could prove that she was a drug user and so it was if she was going to get on the stand and say something that we may or may not provide it from a liability she was going to if she came forward she would hearing i simply made proffer in the truest form of the version this is what would testify to them on a directed verdict and motion for a new trial i actually submitted a transcript and the audio and our review is for i believe this is no review i disagree or i think that this is a constitutional issue and i think that in looking at this dish well you don't argue that the prosecution had discretion to make that judgment call i don't argue that they have the discretion based on false information that the government excuse up there was a police department knew they did not have updated recovered the individual and they recovered the vehicle and the weapons and mr wheeler prior entering the house i think that at the time that they got the warrant so it's not bad eighth or something where they're putting erroneous information it's just that facts developed and by the time that they had the warrant they had information it was not mr driving it was mr my name is maria song and i'm an assistant united states attorney in the district of new mexico i would like to begin with where co counsel began with the immunity issue in this case and i think serrano the case out of the tenth circuit clearly puts to rest any of the arguments that he raised in his brief first there was no improper government coercion the judge in this case appointed an attorney to represent miss nevada as an after independent consultation with attorney she elected to raise her fifth amendment privilege not to testify in the case and judge brack even noted in the order that he issued with regard to whether or not her statements could come in under  seven that her statements were not in fact material because even if she stated that she had at some point possessed those firearms or someone else possessed those own those firearms that did not go to whether or not dalton had actually p a firearm at any point in time additionally it's within the sole discretion of the united states attorney's office to offer immunity so now i'd like to move to the second issue that was up for discussion in judge philip i know that you had some questions about that with regard to the four zero four b evidence in this case this court underhill had stated that the exclusionary rule does apply to four o four b evidence that was brought to the court's attention and the court went through the analysis of whether or not the evidence discovered on may first two thousand and sixteen had been properly obtained now what happened was an officer renne testified to this outside the presence of the jury prior to that information being given to the jury he testified that at on may first two thousand and sixteen they saw the defendant saw dalton's car being driven that they tried to initiate a traffic stop that the car took off and then was parked in front of dalton's residence they also in the warrant specifically stated that they asked a neighbor if they could see what happened to the driver the neighbor said they saw the driver go into the back yard officer ran testified that at that time they did not know who the driver was they did not know that it was very real or the information in the warrant also stated that then they called out dalton and miss nevada as who was his girlfriend they came out of the residen the whole bunch of things together as though it happened simultaneously and in fact when you say they had seen this car being driven thought it was an officer ran you responded that otherwise correct that's correct on officer cra and then where is mr wheeler found ultimately in the backyard and how many minutes elapsed before they find him proximately i believe the surprise is longer than an hour your honor what what  what officer renne testified to is that all of that information that was known to them at the time officer crain then left to go get the search warrants they start executing the warrant and it's not until they begin executing the w that wheeler was wanted for murder but he never testified that they knew that willard was in the back yard when officer crain left to go get a warrant i agree with that but that's not what i said they knew when officer crane came back with the warrant about wheeler they found him in the backyard before they ever executed the board and your honor that is correct i apologize i believe by myself and it's important because what they find is straight ammunition in a bedroom in plain view which how can baldwin say i didn't know about engine ition very could say that with the august search because it was all hidden and so wouldn't have had an awfully big impact on the jury in trying to determine whether in august he knew about the guns in the ammunition well your honor the information that don't gave to the officers on me first was that he had gotten home approximately an hour ago that no one had come in or out of the residen during that time and that's the information that was relayed to the jury and during during dome case in chief he actually really called an officer who was present for the me first incident and i asked him specifically about wheeler about wheeler being found in the back yard and it also came out during case in chief that serious wheeler had access to the  say that they had known that the words of the affidavit had gone to the magistrate saying this car belonged to dalton sped away from us we lost it for fifteen seconds we found it in the alley a neighbor said someone jumped over the fence and we well your honor i think that that would be a closer call at that point i believe that if they could communicate if those were the simple facts that wheeler was found in the back yard then i don't that the officers would have had probable cause however those are not the facts that were present here are the facts before they executed the warrant though the probable cause to dissipate is the question the probable cause  t your honor that says there is there's nothing in this court's jurisprudence which would require the officer at that point to then re notify the magistrate the r d has a search warrants to go into the house to search for the ammunition if there is no other question i have one question and that is with respect to the video yesterday if it ran for all our you know your honor the video in its entirety is an hour approximately twenty minutes of it were shown to the jury what what's or should show the portions of the video that were shown to the jury show law enforcement on a megaphone calling dalton out of the residence there was a portion shown to the jury where the swat team arrived and they're discussing whether or not they're going to enter the residence and then the remaining portion of the video shows the defendant coming out of the residence and stating that he a the timing that it took to get all my out of the residence which goes directly to his consciousness of guilt it also allowed them to assess his statement that he was sleeping there's a difference between an officer testifying we were outside we had to make a phone and we were calling him out and allowing the jury to actually hear for themselves the amount of noise that was going on outside the pervasiveness of them calling him out and so his statement that he was sleeping also goes rick the last argument that i'm less there's any additional questions about the video i'm happy to miss is the last point that dalton rates in his brief which was that it was aired to admit the expert testimony in this case the expert testimony even though there was no evidence of fingerprints or d n a the expert testimony was proffered through explain the absence of that in this case we believe that it was properly admitted and there was no air and unless