to your honor's it's i think it's probably the most secret and i don't need to tell you this is the most sacred function of this chord in criminal cases to ensure that offense receive their constitutionally mandated right to fair trial this is one of the few cases i think that that did not happen there were two two principle problems at trial deprive the defendant of two of his most fundamental rights which deprived move fair trial and both went to the heart of his defense the first was his right to confrontation let me ask you if if this witness who testified about the location where she found the defendant had worked for him i see a printed aaa map and she had marked and said this this is where i was and i recognize that this is an accurate depiction of the area as i see it is that that the agent was not able to say and was not able to verify that this these coordinates on the map matched with that arrow that said that pointed this is the place so it's not the existence of the map that concerns you it's whether the witness pointed properly to the place on the map is that right not that she pointed properly to it but that it was janet to identify the place on the map she she identified it is the proximate located approximately q i guess what i'm trying to focus on is whether the problem is actually with the physical map or with how she identified where on the map she says she was which is the problem here the problem is that and at least in this particular case the issue  terms of where the where the individuals were found had to do with the g p s coordinates and there was a big issue about the g p s coordinates being being mistaken so if you have exhibit one yes place where it says united states oh i'll buy the little yellow line under the united states how about what it says mexico and i complain about that are you complaining about the so how is that different from my example of the aaa map because the agent testified that the tackle or arrow indicates where approximately where she was responding to that evening so why is that different from somebody placing the axe or saying you know i asked you know joe to place the x in that place and it accurately shows where i was that exactly what cross examining her is for it not because there's anything wrong with the map because she was available to be cross examined about her mistakes and whether she was really sure that it was on this side of the mountains or that side of the mountains the problem is that there was no witness to testify as to when he received the coordinates from her was it back in was it back after the incident was it prior to may nineteenth when she realized her mistake was a post may judicially noticeable by this court under rule two zero one the problem is that the confrontation clause goes to something completely different that's agent was confronted and i don't understand why this is any different than having her physically mark something and say this is where i was standing and you can cross examine and say no you weren't you said something else here you said something else there it's very inaccurate because she specifically said that she was unable to that that she did not  e that attack or the coordinates that the only thing that she was able the verify was that the minutes that she had recorded mathematically converted to the i'm sorry that to the degrees that that's represented on the map all she could verify was the mathematical conversion are you saying that agent garcia i had no personal knowledge of where this arrest occurred and there was some unknown person who decided where the arrest occurred and placed the tac there which she simply was unable to verify she was just accepting what some would call mr x decide it was the place where the arrest occurred is that your point she didn't know enough to be able to confirm that my point is that is that the defense was based on the idea that they got lost and it was supported by several things in the end agent's own testimony and because they got lost there was an issue a very large it issue with respect to  interrupt you but that's fine and that came out that was hot that was of there is good cross examination and that a trial and the jury knew about that but i'm talking about the hearsay rule it's an out of court statement offered for its truth by somebody who can't be cross examined and this seems to me just like this is the intersection of pleasant street and main street in amherst i'm agent garcia i know where the bank of america is yes that x right there is where it's all they've got leaving the bank after the bank robbery she identified this spot from her own knowledge where that occurred or are you saying she couldn't identify the spot and somebody else did this is this is where she thought that she was responding to but there was nobody to cross examine with respect to where and when he got the coordinates did he get them at the time when she was mistaken had mistaken this incident for an incident a few days earlier which was her which was her testimony because she thought that one helicopter she confused the helicopters and confused the incidents or was it at another time there was nobody did to test the reliability through cross examination of how of of how these numbers when these numbers because w numbers got on the map a fact tremendous that the entire analysis as to as to if the location if they were if they were given based upon her mistaken information or mistaking this with the prior arrest then clearly clearly it is right it can't be relied upon and without somebody to to in order to cross examine about not only when he received it and what she said about it did she say that it was the place of of apprehension did she say that it was the place where they responded from all of those things or things that needed to be tested by the crucible of cross examination and and you know what the margin of error was all those sorts of things where the two thought with or without that she testified about what she knew she was there she responded in her chevy pickup truck or whatever and even without that she testified that it was i think six or seven miles north of the borders i guess i'm not really sure what i think that she that cross examining her w 't constitutionally adequate she was the person who performed because that probably the most important in my opinion piece of evidence that the jury saw when the jury takes back to jury government please the court right now or six of the united states we're asking that the court from the conviction in this case because you have exhibit one yes i do your honor ok you see the pen and numbers those numbers match the numbers that she got on a handheld device when she checked the coordinates at the time of us how do we know that those numbers correspond pera house and the eiffel tower all have the same coordinates on these also the eiffel tower so the reality is that you can create a google map like this with a pen and tell it you see the last one there we have the pen and the coordinates are forty eight think i think the what what saves it in this case would be that agent one we know the apprehension did occur in these various other locations the agents so this may be homeless for when i did your honor and that's i typed them into my own computer many times before you typed them in a particular way you talk to me in a particular way that caused them to come up next to their pen but you understand there can  and insofar as we're talking about maps in general though we can accept the maps and somebody comes along and says i live at broadway in maine and i'm looking at the map and i recognize it to be logging in maine then that's not hearsay right well i think but there but if but if somebody says broadway in maine yeah these particular the g p s coordinates you don't know that you can't verify the formula knowledge i guess what maybe i would draw the analogy to if somebody had the address of one two three jones street and there may be dozens of those throughout the country and agent writes down this apprehension occurred at one two three jones street in arizona and in the desert because that's where i work we were about five miles from the border we were north of the union stand and we were in th the i guess my point is that in giving those coordinates and again maybe the analogy is to one two three joan st maybe it's nicely to st in illinois where but she gives those coordinates somebody puts that into google map and finds if there because without some explanation there's really no assertion that can be ascertained from from what that is and it could have been i think a reasonable person could look at that and say well look like g p s coordinates maybe there's it's there's some some assertion about a location what that location is there's really weight no way to know without the agent who recorded those coordinates and has personal knowledge of the area she's now at trial and she's shown the exhibit but she can't verify that those coordinates are at that point in the map and she didn't do that i have the examination here is where it was required scanned she does not say i know for a fact that these are the coordinates on the map no somebody else did that that's true but she and person didn't testify that's true but and why isn't that hearsay why why isn't the placement of the coordinates into the computer so they have to show up next to the pan why isn't that a sort of statement made out of court which is not subject to cross examination well i guess the difficulty i had in analyzing this issue was well john why should i so my question and then you can tell explanation i don't know there's any way that somebody could could could extract that it's assertion from them what do you think the jury would see when it went back to the jhoom if looked at this without any explanation from the agent they would have had to guess what the significance of that is they may have thought they probably could have put together this is pinpointing some location they may not and i see so you think the jury would have gone and said we don't know what those numbers next to the pin mean in the fact that it's they happened to be exactly the same i didn't have a map but but she did say the tack mark is approximately locational responded to and then she was later asked is that a fair and accurate depiction of where this apprehension occurred yes that would have been without the numbers she could have said you know the pen is there have no numbers next to it but then she went one step front of them and said not only is it approximately where i found them but those numbers correspond to the meaningless or they would be subject to a variety of assertions for example it could have been where there originally responding from or it could have been where the camera operator was located when he first detected these three individuals and so there's a third question  we're running out of time a question another matter which judge because inskeep alluded to have you waive the harmless argument is that your brother suggests that you weighed in the argument that mistake if there was a mistake was harmless have you elsa's so my point is i think the court can find that this was harmless certainly because both agents unequivocally said this happened in the united states there are several miles from border and that's of the extent there is there any admission the map we believe is harmless