sentenced and the case is a very difficult case factually but it is his assertion before the court today that he needed and should have been provided the benefit of the testimony of jesse kaufman primarily he was not testifying about anything that castle said so as to cast cell his testimony was pure hearsay was not well no he was testifying as to what castiel said t testifying about was well with most abuse i told him about what kind of steel said to her correctly so as that statement is classic hearsay is it not both are classic your no nine to get that into impeach or you were saying that you would have inconsistent statement of a witness because the prior inconsistent statement of a witness must be what must be that witnesses statement not those not the statement of somebody else about what a witness said but ca saying it to doesn't matter doesn't matter what's the hearsay exception that allows you to admit confidence testimony to impeach castillo my opinion is that the best hearsay exception is the arrow seven residual exception where there are a number of prongs in the in the law itself i'm sorry in the in the rule itself where i have it up on life phone to get  to my problem with the residual exception is this we have an exception devoted to prior inconsistent statements yes and this doesn't fall within it well your honor is the one who tells me no no i ask how to do this is in jeopardy your answer must be in the form of an answer isn't it it's it is true that the veyron consistent statement rule would not would not allow the admission of miss bukit statement to impeach steele the theory that the reason that i think it should and i don't think it would do on its face it doesn't doesn't know i disagree dealing castiel said to us in court under oath that he'll be  in classic hearsay jargon you have to take as true jesse's testimony excuse me that melissa said to jesse what dylan mike my request was that the jury be given the option to take it as true or not just that we have the benefit of the pre standard but in classic here's say it terms you are admitting for the truth the fact that melissa said to jesse what dylan said to him the first level of melissa's at six thirteen i have no problem with it but the second level seems to me to be classic hearsay without exception the and i will i think well why are standards to be saying is yes it is here say it but it falls under me the need general exception and there are problems with that but error and it erred in not allowing you to use this prior statement to him to impeach you really doesn't even have to be impeached i mean it's just a prior statement of a witness whether or not the that was an error that prejudiced you given given that book i wasn't present at the murder she's present before and after correct and there's four witnesses three witnesses who testify about the murder blood in your client's car so my question is given if we're looking for prejudice which is your burden to show why would we find prejudice in this case from what i think was the judge's error not admitting what what i would say is was this testimony of jesse kaufman and maybe this is my opinion that is my opinion maybe it's only my opinion i should say but it really seems to me that this witness was crucial to our defense and he came the witness was crucial not because of some point of inconsistency the witness was crucial notwithstanding your representations that i say that with a small r because you wanted to get in the substance of your defense wasn't present that stress right all this witness knows for present purposes that make any difference is what who kite allegedly told him correct so all he can do with respect to this transaction is impeach guides testimony correct and you want him to also impeach has details but that's a lot harder well now you know and just specifically and then i have some other questions are you try it is your proposition that we be in conflict and some of it was in conflict but a lot of it was so you have and then you get to the pressures question so in order to deter turman the precious question you'd first have to judge we would first have to determine some detail what could have come in important i the reason that i don't think that's true is she was present in the house after they came back from where the murder occurred and she saw the interactions between two yo mr boulder vino's the older mexican and my client the younger mexican and that the entire defense theory is that the power in this relationship shifted that night and that my client had no interest in murdering this person whatever she saying is is kind of impressionistic in terms of have they related to each other before and afterwards but not during the at the actual murder true true the evidence i'm seeking to get in there is that dylan katz deal though he testified a trial that my client was the boss and called all the shots including at the location of the murder that night and so let's leave the location but he later said something different to melissa if you have i want to return to this you can only introduce this statement to impeach let's assume you can't get it in against castillo ok and it can't be admitted for the truth of the matter because it doesn't fit within the ada one d exception for truth of the matter it wasn't given under oath so all you can get this statement for assuming you can't get it and get steele is to impeach puke i'd answer the question is if you could have been peach bukit about her description of what happened before and after the murder would happened that day she was kidnapped she was duct taped put in a room then people came back later and talked about whether to kill her whether or not that really makes a difference in this trial well our theory was that the  consistent including your own client's testimony that was the case until that night and d d only evidence is your client's testimony that for some reason something curia development all of a sudden this s subservient relationship shifted and the uncle became the driving force that's the theory of the defense write your nicely my time's up and answer the question please the yes is the answer to that however we had an established motive opportunity for t o to talk to the hit the higher ups and make that leap frog move in the hierarchy so it wasn't just a speculative theory we had a lot of different pieces of evidence and they only were able to come in through my client because everybody else had changed their story for the benefit of their sentencing that's my answer ok thank you very much  it please the court and counsel good morning my name is stephanie of m r and i'm the assigned to usa from this case to the beginning up until now and throughout trial i want to first address some of the court's questions as to the admissibility of mr coffin's testimony and go right to the issue as to whether it was truly an impeachment as to an inconsistent statement of miss been hyped i don't believe the defendant has established it is much of an inconsistent statement most most of what mr kaufman indicated that boohoo height told him told him in a hotel room six months after the murder was not that inconsistent with her own testimony and some of it was very minor parts to sell those minor parts at which she was cross examined on evidence of her prior statements may be admitted not for the truth of the matter but to impeach or when i think that although the court has a good point the issue that the district court struggled with rightfully so is that this defend suspect you would have if you house g o p house mates are often not very good witnesses but non vote less he said i had a conversation with a witness friend and that witness said things to me inconsistent with what she said on the stand and so you can you can you can argue that it wasn't very important and therefore there wasn't prejudice but very important doesn't mean that it's not admissible as it did but i don't think that they were i did say that she did meet the guy right but she didn't get into it because why would she discuss what occurred when they had already threatened to kill her and her family and that made her exit is i think how one story was corroborate and didn't meet him i did meet him in a hotel room but tonight ever getting into any details about what occurred which made sense but going back to the court's other in korea's to inconsistency i think part of the problem that occurred here is the defendant was muddying statements statement six six twelve says when examining a witness about the witnesses priors reporting did not show it or disclose its contents what what do you know one says it of you know three one says is that it's not admissible for the truth of the matter and that i agree with that but it isn't miscible to impeach is it not well in this particular case without having any additional reliability and having it not actually been material different materially different than what she testified i think the court rightfully was concerned about continuing to muddy this issue of continuing to try and get something you know setting him up when she had said before now let's let's leave aside for now but i wonder get to annex why any of this matters but she did say that well she can still live in her coffin indicated that she was concerned about setting up right her boyfriend but she denied and so the court is considering that as an additional statement and let's carry that out how does in any manner or fashion and was i think concerned about this crossover issue of actually just trying to get this alleged case steel statement in to some things that supposedly miss boo height testified or provided to mr coffey and when her testimony was fundamentally  consistent in the united states perspective and this court was correct that she didn't first of all mr kaufman had nothing to do with the material facts of this case he was not present for more importantly miss because it wasn't present for that for the murder she was not present for the murder clearly the kidnapping being tied up being present in observing some of the events before and after were impactful and somewhat material in terms of this issue of duress of what she observed would you address judge present question about prejudice because i want to ask you about the dress but i want to get make sure you finished on this topic i don't believe that there's any evidence that had the court that there was any prejudice suffered by the defendant by failing to present are coffins testimony the defendant was able to get  all of that defense says as your honor pointed out through other witness says through all of the cross examination through the testimony of his own client and mr kaufman if it was limited simply twentieth to height supposedly had said to him it didn't make a material difference as to the evidence whatsoever and i don't believe that he can establish prejudice on that product under duress issue we tell you what troubles me i'm not i'm not sure quite how to phrase it the only defense offered in this case was sufficient to warrant a direct instruction but in a case in a murder case where life is the penalty and the only defense even if it's a bad one that's offered is to rest why shouldn't the judge instruct the jury on dress because just because you have a defense doesn't mean you're automatically entitled to it you have to why should you let your sacraments why shouldn't the judge say here are the legal requirements for dress i leave it to you jury whether or not he's proved those things on the theory of his defense there's evidence to support it albeit only his own testimony but so be it that's up for the judge to be concerned about the jury's realm that's his defense why isn't he entitled to an judge judge and tell them what the relevance of that defense was so here's the issue that i have with that is if we are going to accept that premise of an argument that because a defendant can present something should he be entitled to the charge then we've eroded the basic principle that requires him to meet certain elements that's the reason the law is there he's like this if i meet that he has to introduce some evidence from which one could arriving to present it and the issue in this particular case is that it was so far askew because i mean basically the main reason i gather you would say or the judge said is because the last possible threat he talked about was well before the actual murder is that why there's a myriad of reasons i don't think he could establish any of the three permit requirements the immediate threat of death or serious bodily harm there was no establishment of any immediate threat of any conspiracy charge and this particular case and although he initially and continued to deny being present for the murder in federal murder connected with drug trafficking you can be convicted of your participation  not by necessarily pulling the trigger but by also facilitating it by inquiry just through the maybe he did have a restaurant that's not only theoretically but also because then the relevant point at which the dress becomes relevant is a different point another words if he was subject to duress in joining the conspiracy and that he could have been held guilty only for conspiracy and we know he was well he actually acknowledged that he was not there was no dressing during the conspiracy testified at length being a willing member of the cartel that he was control of facilitating i'm not talking about that and so on but the conspiracy to murder he was not charged with conspiracy to murder he was charged with conspiracy to distribute and murder in connection with that drug conspiracy and so part of what was fettered out before the district court is there is somewhat of a split amongst it but the murder could have been part of a conspiracy rather than him doing it himself but we didn't charge conspiracy to to to the murder portion of i so then with that we started from why isn't there what they asked for simply that there is no difference to pads because i think that there was a concern and split amongst the circuits about how you handle some of that issue when there's alternative was it was something that was of concern to me during the litigation process of this ok you use your time thank you very much so i give you i don't know if you have time with i don't judge i have one statement we did not offer the duress defense to the murder my client denied to committing the murder we offered the dressed offense to his driving the murderer and the deceit and to the location where client was part of it and he says well i i was i didn't drive him there i was i was under duress to drive him there correct but there's substantial testimony that he actually committed the murder is that even if he drove there under duress since you griese that he went to this that he everything else that happened beforehand happened yes why would do dress and driving be a defense to murder what i argue below what i think is true now is he had to explain why he drove there otherwise you know you're part of the murder but again it wasn't just conspiracy it's hard as a as a murder and  it's murder in relation to a drug conspiracy right so let's you have a drug conspiracy you kidnap a guy the conspirators take of the house let's assume somebody else drives and they decide to murder somebody else drives a guy off and murders him and your guy remains at that house he's still guilty as you know no if you stayed at the house and didn't participate in the murder of his it's a murder related to a drug conspiracy he's not he's charged with being involved in a in a murder related aiding and abetting he doesn't have to committed himself we talked a lot about that below and since the court's asking me if you read the statute of murder in connection with the drug conspiracy it includes the concept of oh gosh