excerpts to argue that objective physical evidence showed that there was blood on the rocks behind where agent andres stepped onto the trail to confront mr rivera that served to confirm agent ambers as trial testimony and give the lie to mr rivera's trial testimony barely an hour earlier the prosecutors sidebars had told the judge that the evidence did not support that argument and at the seach the judge to allow the government to put on a re exactly that point is not a fact the prosecutor went so far as to say that the trial evidence was dramatically different than the evidence that they want to put on to support exactly one of the matter what the prosecution was saying that sidebar we have the transcript we can go and look can figure out for ourselves whether there was evidence or support for the argument that was made in closing argument right well yes so why don't we look at i focused on the r one fifteen rather than party seem to think either one sixteen was a critical page i  thought there was adequate support on your one system so maybe you could address was said there i believe that's the point at which agent gillespie says when asked you know where is this blood evidence is it down the trail towards agent mendez or is it up the trail towards where you and agent agent amber his work and he said it was up the trail he didn't say anything you know it was relevant to where did we step out as compared to where the blood of you know page in front of you he's asked about exhibit number five that's the picture of the rocks right and the difficulty just so we can get this i'll just let you know where i went straight to those two pages as did judge wofford and the difficulty i have is that so much the testimony is in relation to it's up trail down trail and gestures in the courtroom so that so on the stand people are saying things like over there from here to there well that works when you're in the court room but it's why i looked  eleven where the district court said the testimony of agent gillespie which was based on various physical locations within the courtroom is extremely difficult to follow and that's why i think what the prosecutor said to the judge at sidebar is important that the didn't say exactly where he came out i think that means amber frey's amber is five have a name and we didn't say exactly where he came out and where he came out on that trail is critical that's the prosecutor's view of the evidence so what do we do with the fact that i'm not kind of mess of your argument but we're trying to hone it and what do we do with the fact that i think the point you're making is that the prosecutor thought very clearly the prosecutor did not happen evidence and and the prosecutor thought it was really critical evidence he said as much but the district court is saying it's really hard to tell what you guys are talking about because it's that the transcript refers to locations within the courtroom what do we do with that sure and i think when you look at the district court's finding and this is just one of the two prongs of the  testimony then she says it was a close call it almost seems as if she's saying well this is you know kind of a mistake but when you look at what the prosecutors said it sidebar and that they almost immediately when it drew up this diagram and sat on it through their  closing for the defense closing and then sprung it in some sort of encyclopedia got brown gotcha moment in the rebuttal closing that they understood that this was in establishing the evidence and the judge seems to be questioning it too because she also then jumps to well but even if it was misconduct it was harmless error and she applies wrong harmless error test she puts the burden on mr rivera rather than on the government in the burns on the government to be out to show beyond a reasonable doubt that this due process error was harmless so i don't think that the judge gave a ringing endorsement to what the government did here i think as a matter of fact she had some serious questions about it which you can just tell by her own remarks and all of this is on speculation we don't have any real evidence you're drawing a lot of inferences we have no way of checking i think they i think she must have well i'm relying on what she actually says the judge actually said she said the end the testimony that they're relying on the picture being government exhibit five testimon and then she says it's a close call now i agree that in a close call that doesn't very often factual is from a nation's or close calls but there's nothing wrong with that that occurs every day now but i guess what i'm what i'm saying is that i read her saying you know it's not really clear here and so that's why i think it's important to look at the prosecutor you were reading that but that's different so we write the opinions a counsel says that i mean we can't write him that way you have to draw a lot of inferences from statements so i think i'm having difficulty following and that's why i think it's important to go back to what the prosecutor put on the case said herself which is that the evidence does not  me to follow something else that happened maybe you could clear that up but there's a side bar the prosecutor's insistent didn't ask the question need the question and it really explains it's critical wants to get it and gets permission over objection i think to reopen and then doesn't i think it is this is sort of a time to go home and and they said the evidence never comes in is that right that's right they go right to closing and at the risk of speculating i think that there are two for the record there are two things that obviously could have driven that one the judge  you can reopen you can't do this rebuttal reopening means that the defense can put on more evidence to the judge as a couple times i don't know how anyone would know where he stepped out on the trail as compared with the blood evidence is it's a middle of the night is a trail mentally hills how c actually say that and maybe the government heard that let me just answer that if you look at your fifteen gillispie is asked from where you and agent numbers were who were standing where is the this location in relationship to where you were standing before you came out on the trail i took that to mean that he was asked you know the point at which you intercepted the folks where were these rocks in relation to that he says i would say about where misting leah's and someone says it's about sixty feet to the right sure he says off to the right but he doesn't say which direction the group of aliens came from he says so you're standing looking at the trail and that's off to the right he says yes sir and so the district judge is standing there watching the array of people there and can figure out directionally what they're talking about and on your i his body was turned sideways to the trail the path he could also mean across the trail sure he could mean no no it's the same as when one sixteen this position number five year was up the trail in the direction of travel that the group was going yes or so that clarifies it seems to me that he was talking about they were coming this way it's off to the right up the trail well i don't think so and again i'll circle back to the judge said it was in big us the prosecutor put on the case said it wasn't established at all and i think it's important to if you had the opportunity at the time of the trial if you had the opportunity from the judge to clarify the judge at the turn you did nothing the judge said the government could reopen she didn't just say that the the defense to reopen without the government reopening the defense could reopen and the judge also didn't offer surrebuttal when when the the when the judge says you should make a record what was the judge talking about i think she was i would have to look back the record but i think she was saying that you should put in the court exhibit basically what the governor the drawing that the government used and say what you're exactly what your objections were but the judge said at the time you're jackson's were clear as a matter of fact it's if you look at the record the objections are made before the prosecutor even starts speaking the words for the argument because they see that she's pulling this drawing out that she's hidden over in the corner now just to be clear now you're fast forwarding what you're talking about now is what's happening in closing yes different objects and i think what else was talking about you that be helpful i think i understood judge wallace was talking about the conversation that counsel had with the court after the closing arguments were concluded i don't want to wrap up without pointing out a couple though so just finish that thought because that you could ask for survivor you could have made the record you could have you could have asked the question that you're speaking about closing arguments you see he was asking for help in my point was defense counsel during the actual closing argument objected before they even made the argument because they saw this diagram coming out and objected again during the argument and the judge overruled the objection so there was no basis to ask for surrebuttal the judge had said there's no violation here it's judge already ruled on this now regarding you know the making of the drawing in the in the holding it the second prong of maloney the sandbagging the prosecutor made that drawing right after this sidebar how you think in a fair world where the prosecutor is trying to follow the rules the prosecutor you know what i just told you the evidence doesn't support this argument but i think i'm stake and i think it does and i'm going to put up a drawing that shows the blood evidence relevant relative to where they came out on the trail i mean that would be the sponsible that would be staying within the rules which is what ms duffy promised to this court that they would do stay well within the rules that's not what they did at all they sandbag and they sat on it and they knew they were sandbagging on it she drew the thing after the sidebar before she even did her initial closing argument you can tell by the record that's what happened it's dirty pool is what it is a few months after miss duffy said that they would train the attorneys in that office not to do this exactly the sort of thing that i i i sat through quite a few of these cases when i was on the court that this came from where we do so to say i have a monopoly of criminal cases my recollection is that you have a responsibility to show to counsel anything you're going to offer into evidence this wasn't this is was a d and very often and closing argument people use diagrams are not evidence and i didn't know of any rule that you have to show diagrams that you're going to use in argument to counsel before you use them and i'm missing something or is there a new rule that was there now that wasn't when i was district court was the rule that i'm that i'm speaking of the shorthand is basically you're not supposed to stand back and this was an entirely new argument that they deliberately hel rule oh no i don't think so i think it's and i think it's required by due process clause you see thank you i was running the wrong direction because i thought when you said that there was a local rule but i see what you're saying not i was referring to the rules of closing argument that duffy said that her prosecutors would be trained on and that they would stay well within those rules which like to reserve some time i would absolutely ok here from the government nature of where this is salt occurred this wasn't a downtown los angeles assault or somebody could say i'm standing on broadway and fifth this is the middle of the wilderness basically chaparral covered trails where there are no clear sign posts also and all that said you you understand the facts but could you go to the point that we've written i started on which is it's at page one fifteen one sixteen correct and then the sidebar where it's really clear that the government was arguing for at least let us get this  we don't have it and it's critical to our case and then didn't reopen so i understand you want to look at one fifteen and one sixteen and focus on the fact that you think that testimony which the judge that was well tough to follow because it for using sort of guidepost within the courtroom and you think that supports the argument that that that in fact that the evidence was there i do your own or not don't know but the question is this record's really clear to me and i would like i mean it's truly an invitation tell me what i'm missing that the government thought it didn't have the evidence in the record the government thought it was critical to the case didn't reopen when given the opportunity over defense objection and then i  support where this location was what they want to there's that was we didn't say exactly where he came out and where he came out on that field critical exactly but that's you know it's like if there imagine if there was an assault that occurred in this courtroom if somebody if this were an empty room and somebody came in and charged me and we had a picture of it and i said you know what i got here i go in there's blood over there now if we had a picture and somebody asked me a trial can you put a dot right where exactly where you're standing that makes the argument that much better my whole point is this would be shocking to the conscience if it were not stupid if we start prosecutors literally tell an article to judge you know what there is zero evidence but that's not the case and i think judge wofford going to hit on it oftentimes in the heat of battle counsel they're fighting over things that the time seemed very important i think what happened here was they realized that they did have enough evidence whether it was a great argument just as it permissible in if you have the evidence that this is basically a tunneled means can only go to directions they can either go forward towards agent ambers or they can go back case then why is it that support a reasonable inference because i want to my question was ok whether it's i mean i really think it's not whether we can go back and look at the evidence and say oh they lucked out there's a place in the transcript where maybe the evidence could have been construed that way i'm asking a different question my question is what do we do with the fact that the prosecutor thought at the time that he didn't have the evidence in the record and thought it was critical and then right brought out that diagram  now to be what i suggested and i didn't mean to be projected but you're telling me is since you could go back and find a place in the record at one fifteen one sixteen where the inference could be drawn i'm just trying to do the best i can hear what they're saying is we have evidence already we have a picture we want to read to have agent numbers come up and put a red dot exactly where he was and at the time they thought that exactly pinpointing was critical that's what advocates do in trial what i'm saying is unless i'm missing something for an advocate then to pull back after the sideline realize hey maybe we don't need this then shouldn't a question be was it objectively s testimony to show the exact place on the planet that would be even better evidence that would be exactly where he was that's all they're saying is we don't have exactly where he was i mean it's argue it's a question of degree but i think that's important it's not like the prosecutor saying there is no evidence here they're saying you know what at that sidebar we want to fight for even better we want to see exactly where it was all i'm saying is short of that evidence is it still reasonable inference from the record in the district judge who sat through the whole trial and united states versus mcwilliams this court says that we give deference to the trial judge's views of the matter because he or she is the one who sat through it all that's what judge seventeen observed so if that's a reasonable fifty eight what the defense said in their closing was basically ladies and gentlemen we're not saying that the defendant did nothing wrong but this is the quote but he didn't strike the agent he did exactly what he told you he did he turned away two steps the defendant three or four kept calling forward moving in direction of the government's exhibit five that's the government's statement when the defense says instead i turned around or he turned around a that's opposite and therefore that is what the prosecutor was responding to  if i just look back over pages one fifteen one sixteen and i sort of stand by what i said before and i think what's even more interesting is what he seems to be orienting the prosecutor seems to be ordering agent gillespie to is is this blood from likely from where the scuffle happened because he says ok whereabouts was it in relation to you and was it down there mendez or was it up near the last because he says he then asked is there hand print in it yet so that suggests that's where the struggle happened there's no more questions there's no more think is quoted in your brief it's also one fifteen you have to look i'm sure that he asked where is the location to where you were standing before you came on the trail where misting lee is to the right and then he says was a down with this location number five the blood was that down towards mendez never was specific testimony i also would point out on page one thirty six of the our the prosecutor says the evidence that the jury has is dramatically different than this evidence that we want to introduce i don't think it could be much more clear and finally on the sand drew this thing before they gave their closing our nischelle closing argument they should refer to it during the initial closing argument if they thought it was appropriate they obviously sat on it they were going to use it regardless of what happened and there was no discussion of th closing i don't know how you divine this and trying lawsuits i often had things i didn't know what those canoes are not because but i was prepared to use now you know you're drawing a lot of inference was of the thinking of people for which there's nothing in the record but there are other obvious areas now why why should we write opinions saying the defense attorney thing is they were thinking this when there's no evidence the evidence and record it could go either way they were either well prepared for anything that's going to happen or they're trying to trick you what is the judge said in the nineteen and the judge had to make a determination as the judge said in denying the government's rebuttal trial case look we've several times but you leave it open it seems to me the judge was there the judge did not do anything saying these the prosecutors are out a line that the judge did not disagree with the prosecutor sandbagged what she and said i'm not going to get a remedy because you should have asked for surrebuttal and that ignores the fact that they objected when it was going on and the judge overruled the objections that is exactly what the government maloney said a defendant should do is object contemporaneously they did that and it was overruled let's go as in for the questions thank you