the court i'm bobby stein i'm here today representing man with franco though my time is short i'd like to attempt to reserve one minute for rebuttal in the time that i do have i will address two related issues the courts abus discretion in tonight adequate funding for the f b i practices expert and the court's error in denying the request address instruction this morning's arguments represent a microcosm of the reality in which all these cases were tried starting with thirty five defendants over five years of litigation four prior trials evidence of horrific crimes many lawyers only one judge judge also presided over everything there's no doubt that the enormity and complexity of these cases influenced his ruling and mr franco's case his august seventeenth two thousand and eleven ruling denying more funding webb demonstrates is abuse of discretion where he clearly made his ruling based on evidence in other cases he ruled that to date so the the evidence supported his finding that mr franco if he committed the acts as alleged he did so without the blessing of the government he ruled that he had already heard age and flores testify in two trials where she was quote examined by both the defense and the government but there was no evidence to date in this case this was a pretrial request mr franco was not represented at those other trials his interests were not represented defense counsel was not present at those trials the judge conflated mr franco's case despite the fact that he had previously severed the cases recognizing that they had antagonistic defenses but now he was treating them as one giant case mr franco's defense was about a lot more than age and flora's this testimony trial counsel outlined in detail why she needed monday money to develop her defenses in light of mr franco's long history and successful history of working with the government the fact that he was abandoned by his one of his handlers agent flores in october of two thousand and seven and the court actually agreed with this and his june twenty fourth two thousand and eleven order he gave the defense a thousand dollars to quote determine if the f b i and d o j had violated their own policies  franco nonetheless after the expert preliminarily determined that indeed there had been those breaches he refused to give the defense any more money he said mr whitaker ueda could not testify at trial but this was an abuse of discretion because there was no offer of proof that wasn't the issue before the court whether or not mr ueda could be able to testify so there was no basis to rule that his testimony would be excluded the defense could properly ask for money for an expert to develop her case for non testimonial reasons there were five hundred gigabytes of information in this case it was very complex she needed help and interpreting this and understanding error was compounded where the judge later disallowed the direct instruction there's a very low threshold for the dress instruction there just needs to be some evidence in fact the court found there was some evidence because the defense made a proffer and the government there in limon a motion asked to preclude the defens dress and judge also said no i'm going to allow it and then he was going to make the determination later with regard to the jury instruction but the evidence of trial bore out the proffer and more so there was no reason to then disallow the instruction itself so did you want to save some rebuttal time or i may continue feeling i was just want to make one other point and then i will save the rest of my remaining seconds is that the judge himself found some evidence in the record when he ruled that the defense would be allowed to present evidence of an assault that happened and mr franco while he was in custody he said that it was minimally plausible that it was related to threats that happened against mr franco earlier so he himself in his rulings demonstrated that there was evidence in the record for distress it please the court sinking around on behalf of the united states turning first to the f b i practices expert the district court did not abuse its discretion in denying funds for expert in order to prove this claim of the defendant must show by clear and convincing evidence that the expert was not merely helpful but necessary for adequate representation that's under eighteen u s c three thousand six a and he failed to do so the defendant claims he needed more funds to adequately understand f b i protocol in support of his public authority defense and some of his other defenses but he had a lot of tools to understand f b i protocol the district court pointed out that agent flores and many of the other agents had already testified in the big trial at that point and been extensively cross examined on f b i protocol for handling informants that gave the defendant a great deal of information on f b i policies then the district court authorized funds for defendant for defendant to retain whether he authorized one thousand dollars to determine whether the f b i indio j had indeed violated its own policies when  that was sufficient for the defendant to understand that the eye practices in asking for additional funds the defendant didn't articulate a specific need to understand f b i policies better he basically is the central claim was that he needed w expertise to show that franco's actions in actions and beliefs were reasonable but whether it was not a psychological expert and therefore couldn't offer qualified expert testimony on what franco himself believed that's not the kind of testimony that the agents offered the agents did not say what a reasonable informant would believe or what frankel to lead the agents simply testified about what the policies were and what they did in the particular case whether the f could have monitored franco better wasn't particularly pertinent to the main issue the jury had to decide for its primary defense and that was was franco in fact authorized to commit the crimes he committed in light of the very limited probative value any of the what they had would offer the court had to balance whether any testimony offered or any of the systems that would that would have led to the testimony would shift the jury's focus away from determining what franco himself believed in the context of trial and usurp the jury's role finally there was no prejudice because the defend it was able to present the substance of its primary defenses without existence through cross examination and argument as the defense didn't have to prove that the expert would it would have ultimately been successful so the whole idea is a defendant is entitled to a defense and the defense needs the tools to be able to develop that defense and mr webb was important to understanding this massive amount of information and cross examining the agents wasn't going to resolve the pretrial issues that needed to be developed with regard to how the breach in protocol might have affected mr franco's actions and his intent particularly when he was left abandoned with no protection after agent florists left that would have gone to his dressing struction and perhaps if he had if the judge would have allowed more funding for mr webb pick then the record would have been more developed she would be able to present more evidence that would have