based upon two primary categories of evidence one being the testimony of cooperating witnesses or witnesses who alleges they were they were involved in a conspiracy and implicated ms smith kilpatrick in the nd category being records that were purporting to be business records and over which there was a controversy a trial and i'd like to discuss issues relating to the records today with the time that i have we believe that it was the urge to introduce these records under thirty six dollars because they became testimonial when the government sought to link ms smith patrick to the various transactions described in the records clarification question are you raising a confrontational cause crave a constitutional claim or are you raising it was the air under the fact the government sought to say ok i've got a piece of paper that has the name tracy smith kilpatrick and that's the person that you see sitting in this courtroom and they were engaged in these transactions but they don't have a chance to cross examine about the accuracy of the names etc that's flat out of what you do i guess starting with their constitutional corey more and as good as it strikes me as potentially your best supreme court case language for business records and says business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rule book because having for the administration of an entity's affairs and not for the purpose of establishing or proving some fact to trial they are not testimonial i assume that these records were not created for this trial they were just the ordinary business records of the telephone company or the car rental company or the hotel so how do you how do you distinguish your case from that language in the windows d s your honor i would say i would distinguish it in this way if in fact there is a general if you will carve out for these records kept by say money gram for example money grams got a name tracy smith kilpatrick seven thousand dollars that's what their business records say if there is language that might be a card my position here today is that that card is inappropriate in a case where where the government seeks to make music smith kilpatrick targeted if you will a targeted in individual is the term is sometimes used in the cases the targeted individuals to be linked to that record and so there are times when my position would be there are times when if you're going to make that link that the business records exception and any potential carve outs simply don't apply that was your is your test it's not the creation of the record or what the record was originally intended for but if you use the record in a way that makes a testimonial that that somehow turns a record that was otherwise not a testimonial into testimonials right that's my that's my argument and argument is that that because in fact here you've got again a name the name introducing the evidence every business record you're introducing the business record to presumably local and coke cape defendant so how what what what room is there left for a business record exception or if we adopt your view that it's not the creation of the record but the use of the record that is the target of it for whether it's testimonial i think there's a i think there's a very simple way for the government to be able to use the evidence in this case against money gram for example money gram each money gram transaction occurred from a specific sending location to then a specific pickup location we know that there are there's video of everything that gram location there is the testimony of someone who might remember ms smith kilpatrick who might say in fact she came in she sent the one thousand dollars that if that evidence is introduced along with a record that would let me confront and cross examine that person about whether it was really the defendant who came in and did it or not as opposed to simply a name so my position would be if we extended it with corroborating evidence from the actual from the actual source then certainly it could be confirmed with business records that the confrontation would occur when in this case i sought to cross examine that person to show whether or not it was actually ms smith kilpatrick and that that didn't happen here so is your beef here that her name was mentioned in the record it's not that it was mentioned in the record it's my beef is that when her name is mentioned in the record and then the government says her name is here she's sitting here it's automatically the same person but suppose they had a record that mentioned other names in the conspiracy but didn't mention her record be admissible in the trial against your your client your honor i it's it's possible that it would be i'm trying to think right as i stand here right now i'm trying to think how would i have a right to challenge other names and other evidence as opposed to the specific evidence drawing in my client into this and i'm having a little harder time thinking that i have a right to challenge that as opposed to what i have a right to challenge with my client so i'm sorry did not answer the question directly but i guess it might be it be easier to admit that then again i'm dealing with you know what happens with ms smith kilpatrick and that automatically it's the automatically it's it's the government saying her name is there she's there it's her well that's that's a connection though that the jury asked and they it seems throughout there's more than one place where you might call it the imposter there is offered that it could be somebody else but actually that from my perspective it's not relevant it's not relevant and not only is it not relevant but the potential harm is so great is so great that i believe that there's also actually four of three objects as well but the plaque cross the border if you were using a telephone that was registered to someone and they called somebody that person you could always say yes that's when i fall in and that call was made but i didn't make the call but that doesn't that sort of become a jury argument at that time rather than admissibility argument well your honor i believe that there is as a practical matter there's a distinction between a telephone number something that only bears a number and the actual name because once because it's the practical effect in front of a jury the name is there she's there it must be her as opposed to a phone number that simply a number and we all sort of it's easy to argue to a jury where someone picks up a phone and makes the call it's different when they actually put a name to a transaction and then they put a face to the transaction because the defendant is sitting in the courtroom however my position still is regarding relevan that it's not relevant if in fact they don't bring in somebody to say i was there she sent the transaction is so it sounds like you aren't somebody who is who is actually witnessed the transaction so you're not challenging the fact beginning here the huge data dump does include all sorts of phone calls eventually calls are you know are called out because of the name because of numbers etc i'm not doubting that they started with the records for each of the entities it's just from from my perspective in certain cases they in certain cases they may need to do more now in terms of the question of how difficult this would be for the government and how practical it might be i don't know that we would necessarily have to produce a government have to produce a witness to say i was there and she made the transaction again everything is videoed me these are money handling spots you introduce the video that shows her on a certain date and time in there doing a transaction i think that's probably as good as if there was a witness it be a matter of authenticating the video and i don't think there'd be  a real substantial challenge to that it's but it's somewhere some way one at least one transaction out of the dozens and dozens here that were so important just want a video  witness things of that sort so that's what my argument is again with your best case for saying that come to confrontation clause imposes this additional requirement beyond the business records exception i don't think there i think i go back to crawford because i think that even though some cases more and as the as and others have discussed and williams i'm not sure i know exactly what williams means but i go back right to crawford it's testimony it's testimony and so some very damaging testimony by people involved in the conspiracy i know you're challenge that because they had other motives and so forth but if the jury accepts all of that testimony from the people that were involved in this you are going to need and it is a record i agree your honor however these are highly flawed witnesses and when they come in and they tell the story and there's nothing to corroborate them it's a completely different world and then him that's an argument that's made about every criminal case that i ever tried when i was a district which it is but i think it's valid in this when you're thank you thank you good morning may i please the court tonya law states i want to start with the confrontation clause issue here there is no confrontation clause issue here these business records are not testimonial even if you accept the defendant's argument about whether they were admitted properly under the business records government is asserting that they were but if we put that aside for a moment even if they were were entered in error there is still no confrontation clause issue here because none of these statements in these records are testimonial now if we go back to crocker what we learn from that case is that statements are testimonial when the declarant has a reason to be testimony to being testifying against the witness so if we look at the collins case which was this court's case it tells us very clearly that her statement to be considered testimonial under the confrontation  declarant must have been tended to here to bear testimony against the accused and if you look back at the collins case i believe that was one of those mats check cases where the pharmacy had to keep records under law about who was coming in and buying pseudoephedrine to make sure that they were not exceeding the legal limits and so the defendant in that case argued that one these were not business records because they were being kept for a lot not for a business purpose but also that is entering the information knows that this is about a lot about prosecuting people for buying too much to defend or for creating math that this was understand the distinction between what's the point of the creation of the document and if it's created for a trial related purpose that it should not be considered testimonial that seems to cover at least that's the rule would cover a lot of the business records  kind of interested in the certification though because the certification was an affidavit and it's kind of perfunctory but of this you know these are the business records of the company they're kept in the ordinary course and that affidavit itself you be looked at the exhibits the exhibits where you know excelled spread spread sheets and seems somewhat complicated somebody had to have called that information out of the general business records if i was a defendant i could see some amount of wanting to that matters at all well that's not the issue that was raised in this case and i will note that the reason that we follow the procedure that we do that we put forth the notice of the intent to rely on these records and to admit them through the self a ting affidavit is to allow the defense to raise an objection at that time before trial so at that point the government has time to track down that witness and bring them to trial when the argument is raised at the last minute makes it a lot more difficult and i believe that you know it ministering all of these things when there's not an issue not a question of whether these are actually the records that is the point about allowing these up with kind of getting records and making exception to the confrontation clause for in what we're arguing about here is it confrontation clause is it trustworthiness of the records under eight thousand and thirty six is it different authentication argument is that relevant and i think it's all kind of been lumped together into  one i think the best way to analyze this issue that the defendant has raised is under eight thousand and thirty six where it's the defendant's burden to show that these records are not trustworthy for some reason and i think that that has not been done here for a number of reasons st of all these are bread and butter business records i want to distinguish the facebook cases that have been raised because these are records of transactions with the company about the company's core business so what  rental car company do it runs cars to people and this is a record of a transactions where the defendant or somebody using the defendant's name rented cars so for that reason these businesses are relying on these records in a way that facebook never has to rely on who is posting a photo or who is having kind of a rd party conversation and through the forum that has it has created here even needs to know who  who is renting its cars to because it's responsible to make sure it's not putting cars on the road with on license drivers also note that there is additional evidence corroborating the identity of miss smi kilpatrick in this case and part of that we can look to the records themselves and see particularly in the rental car records that if you look at the exhibit not only is her name listed but her driver's license number is also there and if you look at the exhibit from the secretary of state's showing that she i had registered the two cars that were used in the course of the conspiracy then you'll also see the same driver's license number listed in the official record of secretary of state so not only was her name presented to the rental car company but also her driver's license number her correct driver's license number is there anything in the record of her driver's license or any id being shown to the hotel there is not your honor there is no independent evidence of that now i think that the court was able to use its common sense and common knowledge that the st thing that happens when you check into a hotel is they ask for your driver's license and your credit card but beyond that we also have evidence that miss st vincent met with the defendant at that hotel around that same date so i think there's really if there's any error there it's harmless because the same testimony that she was there came out through the witness so there's additional collaborating evidence for the other records in this case to be look beyond the records themselves we can see that for the money we have  testifying that he sent that he wired money through wal mart to miss smith kilpatrick that's reflected in the records and we also have a receipt found at one of the drug houses which shows a money grab from kevin willis to came to her reflected her as the recipient there was a separate exhibit that there was to be answer not listed even if that was error it's the most harmless error there can be because it just does not tell because there's nothing to rebut her argument that she might have been paying the phone bill with that record and i believe that record was not really besides being admitted shown to witnesses or discussed at length the records that were discussed at length were the ones that she received that were there w they were coming from members of the conspiracy and that that was drug money that was being funneled back to mr wells so any error in admitting these records is harmless given the volume of the evidence at trial where the case where one person came in and pointed the finger at the defendant and all we have is that testimony and then a few records that maybe shouldn't have been admitted what we have here and make clear i'm not arguing they should have been admitted they were properly admitted but  up at the defendant's house and packaging crack cocaine with her right alongside james wilson who was packaging the heroin we have mr cooley who described discussions that he had with mr patrick about getting crack cocaine from her and where she was not going to pay him for the crack cocaine you sold for her because she had brought up heroin for him and so it was a put her we have testimony from  instance at the hotel in st ignace where the defendant gave her a condom full apparently to transport so we have more than the records we have more than enough evidence here that this was harmless if there was any  george bush to try to answer your question you posed the question of the government about whether or not the defendant raised the issue i believe that the defense did i believe that that is and i'm sorry i don't have the page i d number it's at the very end of volume three in the beginning for which is where there was the ultimate discussion of the ruling by by the trial court regarding that the government uses a phrase that to me is absolutely key and supports the defense position the government says it's either ms her name's there so it's either ms smith kilpatrick or somebody using the defendant's name well the whole my whole point is just one time one time produce a piece of evidence that shows  her one time out of all these transactions from from the hotel you know there are hotel videos money gram western union rental car there are videos everywhere and never once never once  is any evidence produced so my whole point is that the name combined with the defendant's presence combined with the automatic link is the gist of where i'm coming from and to the extent that there is no link between them there is no relevance in the evidence but on some of those things there was at least some form of corroboration in the sense that some of the testified relative to they were using certain of the walmart's for example repeatedly to carry out these transactions and whatnot and it was from most walmart's that the money huge difference between cooperator testimony and then the records so that would be my point so i think the court and the requests the courts and what works for conviction thank you thank you thank you to both counsel