please the court my name is autumn town i represent appellant nemesis states mr bates was convicted at trial of essentially a murder for hire scheme for which he is currently serving a life sentence we've raised two issues in his brief but i would like to really address the messiah issue at trial in his case a jailhouse snitch anthony commodore testified as to a supposed confession that mr bates made action was obtained and then introduced at trial in violation of mr bates fifth and sixth amendment rights as well as in violation of the test set out in messiah versus united states unfortunately i'm also somewhat hamstrung  arguing that issue to this court because there was no hearing conducted in the trial court on this matter when this issue arose in cars and would hamstrung because it was a request for a hearing well your honor at trial when mr commodore was testifying to this the defense attorney immediately stood up and objected they approached the bench and they had a conversation about that and trial counsel mr stross or argued that he had never heard any of this information before the dates that commodore provided in his testimony to the prosecution and then again in his testimony to stross or as to when he first obtained this confession from mr bates versus when he actually met with the government was confusing this but he was prevented from conducting a full hearing even though he was allowed the court noted you will have full cross examination it's in front of a seat a jury a jury that's there to find guilt know the district judge when this comes up to have a messiah here well your honor if we are going to request make the request on trial counsel that he actually has to use the word messiah i believe that his objection and find that there was no request for an evidentiary hearing and that is the fault of the trial counsel then i would also argue that that's ineffective assistance of counsel which is clear from the record i know that's normally a twenty to fifty five issue but it can also be considered on direct ability is clear from the record but i would argue that his objection in the discussion that was held at the bench could be interpreted as a request for hearing which was denied by the trial court who said no your remedy here is simply for cross examination you seem to be a request for a ruling not not a request for noon issue here and i would agree with that judge there definitely was a request not to allow the testimony but then i think after the judge said i'm going to go ahead and allow it you just have to cross on it i think at that point that was when mr saucers additional comment cellmate well the first was that mr commodore testified that he had met mr bates over three separate times twenty thirteen again in may of twenty fourteen and then  may of twenty fifteen leading up to the trial which occurred in june of two thousand and fifteen he testified during the government's direct that i we were in the cell together he made these comments i happened to have this old newspaper that randomly had a picture on it of your codefendant and then on cross examination mr strasser was trying to clarify with him because it's relatively unclear from his testimony the exact order in which things happened and mr commodore said well i met with the government on on may first and history or said well when did you have this conversation when he confessed to you that he hired mooney walter porter well just recently and if today is tuesday it must have been last week or the week before so he established that he had a meeting with government agents may in may first of twenty fifteen and sometime after that obtained this supposed confession from mr bates and it was discussed at the bench conference that he had been part of a plea agreement since two thousand and thirteen a cooperation agreement and we will acknowledge the state government has pointed out in its brief it was a separate plea agreement it wasn't specific to mr bates this case and i believe case was referenced up at the bench but because it was a sealed separate matter i don't know specifically i'm going to assume so because that was that was mentioned but he was under this cooperation agreement he testified honestly you know i'm hoping for some consideration here and he went in and met with the agents and unfortunately because there was no hearing we don't know who the agents were now the government did make a statement at the bench conference we instructed him not to ask any questions and that's fine but we don't know what the agents instructed him and it's arguable because walter porter was connected to telling to and that was a case that mr commodore was working on that it's the same agents so of course they are going to talk about this and mr commodore admits that when he learned that he didn't reach out to the government after he got this confession because mr stross or trial counsel asks him about that he says they came to me the agents asked me about it strasser says did you tell your attorney hey reach out to them i've got something ration he said no that's not how it worked so it's clear that he is being questioned about this matter this is not something that he just gets on his own and then offers up and the sixth amendment right to counsel has already clearly attached when mr commodore was speaking with bates it was after his meeting with the government and there were some cases we cited in our brief where even if a government the government employees said don't go in there and ask any questions they still found to be a messiah violation depending on the actions of that person and whether or not they have submitted to the control of the government which we would argue commodore clearly had in this case didn't comment or seek out the government didn't say i have some information well your honor it's didn't go to him and you're sure and that's something that's a little confusing from the record and i think that's where an evidentiary hearing would have come in handy because i would be able to answer that question specifically at one point he says i talked to the government when he's being cross examined by defense counsel he says the defense counsel says did you reach out to your attorney and tell them i have information no no that's not how it worked so the agents came to you he was asking me did i know mr bates did i know about the case so i would argue that he didn't reach out to the government they reached out to him in addition it's arguable that they told him and again we don't know because there was no hearing and they weren't able to question the of the agents keep an eye out listen see what you can find out and let us know and then you have the issue of the newspaper which i mentioned earlier it's a little strange that he's holding on to this newspaper from two thousand and twelve and it just so happens to have a picture of mr bates is coconspirator on the cover and he just so happens to show it to mr bates which then triggers conversation i would argue that that was definitely a way for him to deliberately elicit and start a conversation to try and get some of this information and again because the agents weren't questioned we don't know who the agents were there wasn't a full hearing on this matter we were unable to get that information and even though defense counsel was able to cross examine mr commodore at trial he was hampered by the fact that he was sitting in front of  jury which is a completely different determination of guilt than a motion to suppress hearing when she asked him how he happened to have that that newspaper with him no your honor he made a comment about i knew the people on it so i just had it but that was never specifically asked how did you get that or or how long have you had it or why did you have it what was the time period between the newspaper and the mark of the newspaper was twenty twelve  on the cover of the newspaper and he said that he knew of walter porter and he he then said you know i know of this dude he's a bad dude do you know him and at that point mr bates then supposedly started talking about yes i know him and and then that's where part of the from bates in the hopes of receiving a benefit what evidence do you base the allegation that he was hoping to receive a benefit on other than the testimony that he gave a trial unfortunately i also can't answer that question because again there wasn't a full hearing on it in the statement so yes your honor he did say he did say at trial yes i'm hoping for you know consideration because he was known to jail sentence and that was that was something the government argued in their response brief was that because we had cited henry which is the facts are pretty similar to mr bates case but for the fact that the informant in the henry case was a paid informant and the government noted that and said this guy's not paid it's not the same thing mr connor was hoping for time off of his jail sentence which is arguably worth a lot more than any money that he's going to receive and so narrowing it down to actual physical cash i think is is a little unfair because it's it's any benefit that the informant hoped to receive or expected to receive or was told he would receive and so if he is testifying in the hopes of having time worked off of his sentence that's clearly a benefit and so that's that would be one reason that would make him a government agent and second would be if he was either operating under instructions from the state or submitted to control of the state arguably he'd been in control of the state since twenty thirteen since this cooperation agreement started and i am unaware of the specifics of the cooperation agreement so i can't tell this court if it was relative to specifically one case or if it was pay any time you hear anything let us know see what information you can find out and let us know and i would also argue that if that is the case see what information you can find out let us know that's instructions from the government to go in there and see what information you can elicit which is clearly something that's mentioned under the saw as one of the prongs for the test and based on all of that the fact that he had a cooperation agreement the fact that it  for the first time in trial in front of a jury not in front of the court alone where they could have a proper hearing on this that he had met with the government that he had then gone back to mr bates and gotten a confession the timing is suspicious and it was not able to be fully explored because he was in the middle of a jury trial and i understand that the district court had considered this is part of the motion for a new trial but as judge southwick asked both of the two prior arguments before me the judge was limited only with what was placed in front of her she did not get the opportunity to listen to any of the agents there was a a statement from the prosecution at that ben's conference we didn't drop them to do that but but that's as to the prosecution we don't know if that's as to the agents who were working with him on that case on other cases and so the judge was limited by a very small amount of information as unfortunately as i am and as this court is and i would argue that that's one of the fundamental errors is that without a hearing it's difficult to even get into the mind the messiah analysis because we don't have enough information the information we do have however shows if we make a factual determination of it that commodore was acting as a government agent he obtained this confession in violation of of mr bates his rights and i'm asking this course to this court to reverse that and grant him a new trial in another way jury or alleging existed there is sufficient evidence to uphold the conviction and the basic point you're making is something who are twenty to thirty five meaning as to the ineffective assistance of counsel that he didn't request pretty certain it's the guy but you really want to fourteen i believe that there's enough that was brought out given the timing of the statements the commodore made at trial to say yes there was a messiah violation but it would be a lot better if we could have had a hearing and i could make additional argument on that but if this court says yes there was an error but it's trial counsel is there then arguably i would say you can also find i see even on direct appeal if it's clear from the record or thank you mr towne you save time agents and the use of secret interrogation techniques that become the functional equivalent of direct police interrogation those concerns and those facts on this case are not present here because as judge dance found in her rule twenty nine decision there is no evidence proving that commodore was an agent of the government when bates made incriminating statements to him and i want to clarify a couple of things here  southwick you asked about the timeline of events i believe you know house how long before the confession and everything else i think counsel and i obviously have a different opinion of this i believe opposing counsel is kind of put forth in the re and statements of a situation where it sounds like after the may first meeting is really where the confession occurred and i understand that interpretation based on the way bates testified but i don't think that's a fair interpretation of commodore's testimony and the finding of judge made the testimony that came out from commodore which is all between thirteen forty six and thirteen sixty six of the record that very much testimony in all commodore testified that he and bates met each other in jail in st tammany in april two thousand thirteen while they were both awaiting cases they were in the same dorm the next year in two thousand and fourteen and they began talking about their cases the newspaper discussion comes up kind of in that context right there in the testimony between pages thirteen forty nine and thirteen fifty and commodore continues to say that bates told him i had a little situation and pointing to walter porter who was in the newspaper he took care of that business for me down the line they told a little more kelso this new evidence is there well i think there's too often and part of it is actually mansour to judge clement's question as well to clarify mr commodores ability with his own separate agreement he had pleaded guilty in his own separate case in his plea agreement actually in the record at the just four of five to four ten in the cooperation agreements and four away but he did assist on the telly hankton case and actually testified in that case in court that newspaper with walter porter and telly hankton is rep that that's the newspaper that he's talking about so it's something he was familiar with those people and i think it's actually thirteen fifty or fifty two of the record where he mentions he knew that people in there but more important in my opinion for and for the timeline in the absence of a hearing is what judge vance the district court said about this because she made this finding in page four seventy three of her order she kind of goes over the timeline for everybody and says commodore and bates were incarcerated together commodore testified that he and bates discussed the crimes for which they were both incarcerated at some point during these discussions commodore showed bates a newspaper article referencing walter porter's alleged murders commodore testified that bates stated that he had hired courted to take care of business for him after these discussions commodore met with the government for the first time related to bates's case on may first two thousand and fifteen and shared bates statements with them until this point commodore in the government had never spoken about bates case so that's what the district court surmised and found from commodore statements and so that's a question that she has been able to answer and the district court here judge southwick again different from what i'm saying and anything else of the district court had the opportunity to observe commodores testimony listen to the testimony receive it in the context in which it was given and analyze it with the bat a fit of arguments from counsel in the time of trial and post trial briefing the post verdict motions and she made that decision and there is nothing in the record that bates can point to to show that that finding is clearly erroneous or equates to an abuse of discretion which that's part of the complaint this is how the record went to develop if counsel for bates had asked for a hearing on this issue would he have been in  i don't think he would have been entitled to anything as a few reasons for that one in any event judge vance in the matter said go ahead cross into this so we had opportunity to have an opportunity to look at  that also federal agents testified in this trial to an it was a further opportunity to develop testimony on that point and wow opposing counsel talking about you in front of a jury and it may have looked back this could have simply been it could have been simply coming through his cross examination pietschmann of you know impeachment by omission so there was a way to do this anyway but the other reason i don't think they would have been entitled automatically to the messiah hearing is that again the elicitation was not there there was nothing there to support a showing of agency and that's the question here where i think also there's a different stack while opposing counsel looks to henry it's in this case really isn't handy as this court has stated that henry and messiah bolton cases and really cases where agency was already established the question was whether the elicitation really violated the sixth amendment here this case is more like cutting where their head where there was not a crime if a shoot came shown of agencies tom of commodore testified that he had the information and was given to them given to the agents at the may first meeting and after that is judge vance found the time line showed nothing else no evidence was uncovered to show it now had there been a messiah hearing judge southwick obviously could have been maybe more evidence would have been there but there is nothing indicating that the testimony would have changed in fact the statements of the attorneys at the bench conference in the gate of the need for anything defense counsel at that point of going back through again thirteen thirteen forty nine fifty of the record where opposing counsel brought this up and told the usa you sent him back into the jail which is one of the claims the usa clearly said we did not do that i didn't send a manual that there's an allegation that the agents instructed in coach commodore and what to say the usa again at the bench said clearly you can  t this we did not tell him to ask anything in fact we told him not to ask any questions so there was nothing before the court that would have actually satisfy the need for hearing and because of that there is no need to do anything else he the question in this case is agency and as i said this is not heal in which the agent was always kept looking for information and went to a paid informant who we had been paid for a year was paid and things into three bases and said go into the jail don't ask questions but go into the jail and listen to anything the federal prisoners say especially the defendant in that case and that's not what you have here here the only evidence on the record is that there was an instruction not to ask questions stead it is just like cutting out in which the defendant got the information and it was brought to the government's attention that the may first interview in light of these facts there is no agency here and because there is no agency there cannot be a messiah violation as the bench discussion in the direct testimony the cross examination of this matter showed the record evidence supports the district court's conclusion that there was no evidence that commodore was a government agent acting at the government's behest when that happened but even if there is an issue your honor there's no reason to clarify anything here because the record speaks for itself now the ineffective assistance of counsel claim that counsel mention right here obviously that's not before this court right now and i certainly don't think there's enough on the record this court that would clearly show ineffective assistance nor do i think it is ineffective because i think the questions that mr stross of defense counsel trial elicited and cross examination showed even more that there was no violation anyway so there was no reason to go further but even at this court found the problem with the testimony and even if this court thought this comment was testimony should be excluded were for ever reason this is another reason not to send it back for any remand for clarification judge south  because the other evidence in this matter was overwhelming so any admission of this testimony which is less than twenty pages in the four day trial with twenty one other witnesses by the government any error is harmless by letting the man in this case that the jury heard detailed evidence from one of the hit men in this case aaron smith aaron smith walked the jury through exactly what happened through every step every communication he had with bates every time they said he needed ben's business taken care of for twenty thousand he talked about the use of the phones how and this was corroborated by cell phone records all the times that smith contacted bates by phone where there was a text there were several text messages and several communications between the phones he even talked about how smith how bates used smith's phone to pull up an i phone picture of the victim in this matter tightness with we know who he was so this was very detailed testimony by one coconspirators in this case but smith and while smith's testimony alone satisfy that it was corroborated by cell phone records by bank records showing a ten thousand dollars deposit into an out of bates account and by car rental documents in addition to the testimony of smith the jury heard the testimony of bates his girlfriend at the time denise a hancock who testified that she was there when he got when bates got the call from smith telling him that tiger had been killed she talked about his demeanor and talked about the next day and told the jury how smith said i just couldn't let it go that tiger stole from me they also heard the testimony of keith hamilton who had known bates for a long time saw horder in smith dealing with banks every day at the car wash for months after the car wash they also heard from bates himself this bates testified and they rejected that testimony even though bates blamed almost everybody else and accused everyone of line they also heard that bates gave statements to heard from hancock and hamilton that bates admitted he did this admitted he shared some when he killed tiger and told hamilton i'm involved it was a hit so in light of all that overwhelming evidence from twenty one witnesses aside from commodore there is no harm even if even if there was a messiah violation any introduction any error in introducing commodores testimony is harmless beyond reasonable doubt the only other questions relating to the evidence that opposing counsel really brings up all relates with bates's opinion of the credibility of the government witnesses but as this court certainly knows credibility is solely in the province of the jury and there was nothing about this testimony from any of these witnesses that was implausible incredible or just impossible the jury's the final decider of credibility and the evidence in this case supported their decision if there were no other questions your honour's i'll just conclude by saying this is not a case where the government did and instructed the jailhouse informant to do anything much less to ask any questions of base it is a case where the record supports the district court's decision that there was no agency in this case at all and therefore no messiah former assistant u s attorney point the norm yes your honor he's he's always got this wrong he's either my second cousin and my first cousin once removed i don't know what it is but we act and we crossed over at the office for about six months before he retired government argues that there is nothing in the record to show that there was an agency relationship and that's somewhat true there isn't anything in the record because no hearing was ever conducted the government asks this court that it should look at cut know as being illustrative of the situation here if that's the case there was a messiah hearing in kut no after that hearing is when they determined that there wasn't an agency relationship what do you do with the argument that any error was harmless because of the overwhelming nature of the evidence and twenty one witnesses and admissions that page made to other people well your honor i would respectfully disagree with the government's position that it's overwhelming evidence of those twenty one witnesses only the four that the government mentioned aaron smith anthony commodore denise the hancock and keith hamilton had anything to say about mr bates everyone else testified about either investigation that was done in the case which didn't produce any physical evidence or it was the coroner who did the autopsy it was someone who worked at mercedes benz who said yes i remember seeing mr bates driving mercedes benz around what about bank account transactions turned out housing twenty thousand w r the ten thousand dollars that was explained by a defense witness as part of a car transaction which mr bates often facilitated do the fact that he owned the car wash and dealt with that i guess luxury vehicles sometimes so there is a plausible table he also admitted at trial that he had several convictions a history of drug use that he had forgotten information in his factual basis that he had provided incorrect information to the government then went back and changed it that he would lie to save himself also admitted that it was only in preparation for a trial that this drug has memory so we would argue that yes that this court can't find that testimony to be credible and with one of the testif against him anthony commodores testimony out then that leaves denise hancock the ex girlfriend who was so obsessed with mr bates she killed his car within the first two weeks that she met him because he was seeing another woman and then keith hamilton who was his ex lover who had a five hundred thousand dollar  insurance policy on him who later found out that walter porter was responsible for murdering keith hamilton's long time lover and blamed mr bates for that and had been the police had had the police called on him several times by mr bates because he became obsessive with who mr bates was dating so the four witnesses of the twenty one who actually provided information on this all had their own motives all had their own reasons for being up there and their testimony  believable the text messages and telephone calls that are referenced they don't actually have any of those they have cell phone records showing things occurred they don't know the subject of that they don't have recordings of any of it so it's speculation as to what was contained therein and when they say that the the timeline in the record is completely clear as to anthony commodore it's not on record page thirteen fifty seven he's being crossed by defense counsel who says when you had this conversation with me mo where you say basically told you that he had hired this guy movie when did you have that conversation commodore replies recently the recent conversation was today is tuesday that was last week the week before last before he got moved which arguably is after the may first twenty fifteen date but again we don't know for sure because no hearing occurred the timeline is not clear in the record all of the evidence was not put forth before the trial the district judge and unfortunately it's an unfair interpretation to say that the timeline is clear because it's not the henry also talks about the fact that you have an undisclosed undercover informant who is operating in a capacity who no more than a fellow inmate that's exactly the issue that we had with commodore he was acting under instructions as a paid informant and he'd had an agreement since twenty thirteen there was an inducement here because he was doing this to