good morning may please the court my name is mary alice i'm here speaking on behalf of the defendant in this case i receive the court's order the two issues that you've identified  the two substantive issues in the case and i would begin by saying that in that prosecution of mr philosophize the government face to huge barriers to conviction that they needed to overcome in one way or another and the judge by his rulings made that possible the first was their case as to mr veloce guess and his involvement as a quote unquote leader and director in m s thirteen depended one hundred percent on one of the most disreputable informants i have seen including in my seventeen years as a prosecutor with the drug task force where we dealt with many informants this man was at the bottom of the barrel so they desperately needed corroboration first and the judge allowed them to do that when the judge allowed that hearsay confession of mr herrera to come in to evidence also the government's entire theory was contradicted by the opinions of the cultural defense experts it was going to be a big problem for them if the jury heard that because that was such compelling evidence and if you look at the reports at the proffers which are at the excerpts of record one fifty eight to one seventy six you cannot no reasonable person could help but see how difficult it would be to imagine a person raised in that environment in that culture in that time frame in that rural community be set by so much brutality and violence in the midst of the civil war could at the age of twelve be dropped down in san francisco and be able to comprehend and figure all this out and so the judge excluded all of that the government didn't have to deal with it but the jury was deprived of really critical information because of that that could have led to in the quibble i'm not talking to  evidence well i think our question really was more narrowly focused not on the cultural expert on the preclusion of testimony about the ultimate mental state right so i have noted the evidence that was admitted that the judge allowed which was very narrow and the evidence that was excluded and i can kind of run through that with you to see for you to see where the critical problem arose and it to sum it up before i go into details what happened was the testimony came in through dr white it was structured in terms of mental disorder and illness p t s d and some psychotic break during the time that he supposedly joined in this thirteen so what the jury heard was a lot of symptoms a lot of formal psychiatric diagnosis but it was completely not completely but very insufficiently tethered to the source of the problem the accuracy of dr white's opinion the legitimacy of the inferences she was drawing and the believability of the of the portrait that she was relying on none of that could come in without the cultural context period culture the p t s d and all of her other diagnoses were certainly significant but the cultural defense carried the defense beyond that the cultural imprint that we receive when we're born into a society is externally powerful and gives us our entire frame of reference for how we will relate to people how we will  work in community if at all and i believe that the conclusions that dr white was going to give well that she did proffer clearly she couldn't testify nor could dr burns to the ultimate statement that he could not have formed these mental states but the mental states are for rico are very different and i believe that she should have been allowed to to testify  to the fact that he grew up in a culture in a community where everything was one on one no churches no schools to speak of until he was much older he only had his family and if you read through the report you can see what what a horrible group that was for him to be he related to people one on one the r offenses which are set out i can give you the citations if you want specifics but i'm sure you probably know them and they're in my brief they're very broad they're way beyond conspiracy he the government had to prove he knew the essential purpose of them asked of m s thirteen not of his little click of friends but of them this thirteen that he needed to intend to facilitate m s thirteen's purposes he needed to be aware of the essential nature and scope of and that's thirteen of the large organization he needed to commit whatever crimes he was charged with conspiracy t counts two and three require proof that the appellant had in mind that he specifically had in mind and had as a substantial purpose personal purpose to gain entrance to or to maintain or increase his position in the enterprise that is so much more than conspiracy that's so much more than an agreement i don't see that any reasonable person can look at this man's background in the opinions of multiple experts who saw this who agreed to this that he was childlike that he was operating socially at the may have been mentally retarded and delusional there there were she was concerned that that might be the case because some people had opined that because of his outer behavior well now that why she needed the cultural expert to help her understand if this was delusional what he was saying i guess my question is that in light of the fact that this possibility of return to delusion in front of the jury was discounted by the expert herself it was set out as a as a possibility and then she said that the culture after reviewing the cultural expert's report she determined those were not issues and the focus really was more on his language facility on his rudimentary knowledge of spanish which by the way certainly played a role in his being able to understand anything about what was going on here there was no evidence that he ever learned the flecha the history of m s thirteen no evidence all we have is mr v alter really he's it and that is a pretty shaky ground the jury heard about six gruesome brutal murders gruesome they heard all this detail about what m s thirteen was about but they weren't allowed to hear about who this person was what his history was house how socially well he wasn't retarded in his own community but certainly in a greater advanced society like san francisco you know we are adaptable as a species but we're not that adaptable we can't leave that for you run out of time i'd appreciate your discussing this ability yes well i think that's it to me it looks extremely straightforward there was no coconspirator statement here it was these two men had both been involved in that part shooting they both admitted to it they were both arrested with the murder weapon in hand it wasn't like one of them was given the other any new information they both knew already about the whole thing because they had been part of it so and they were both in custody the show was over well the outcome would have been different because she would have been left with uncorroborated wilson v l t except that as you said just a minute ago there were there was evidence of other murders as well not just this one not that he was involved in they were the murders of i mean they were murders that there was nothing to link him to anything else nothing and killing this issue for plain error oh no no i mean i really feel like i certainly addressed that at length in herrera thing it was clear the judge was ruling on this issue whether it was articulated immediately before that ruling or not and it wasn't even known until until the alter was on the stand what the context was why this was not a coconspirator statement became apparent as he testified and the judge had said all ruled on it at the time i understand there's no objection that it's not a coconspirator statement  his statements about that murder it was specific to the bart killing at that time and he ruled and he let it in and he shouldn't so i will like to preserve i think i've got three and a half minutes left for good morning your honor is may it please the court just handle the united states must a court first otherwise we'll spend the first part of my argument discussing the diminished capacity expert testimony before turning to the coconspirator statements it's well settled that decisions respecting the admission or exclusion of trial testimony are committed to the district court's discretion that substantial difference is heightened when this court reviews the district court's exclusion or limitation of testimony under rule four zero three which you said will not be disturbed unless it lies beyond the pale of reasonable justification under the circumstances here the district court acted well within its discretion when it limited to aspects of dr gretchen white's expert testimony judge  my friend about what exactly dr white had been allowed to testify to so i think at the outset it should be noted that dr white was given a wide berth to offer extensive and quite favorable testimony on behalf of mr glascock is in the presence of the jury she diagnosed you recognize psychological conditions major depression with psychotic features and post traumatic stress disorder she testified as well to the practical effects of those diagnoses specifically naming avoidant behavior hypervigilance interviews about the fact that he had suffered physical abuse at the hands of his father that he had been raped by two of his brothers and that he had witnessed torture and gruesome murders during his childhood in guatemala finally dr white testified that she had consulted with a cultural so the record reflects the dr white was given wide latitude in her testimony there were only two extremely narrow areas that the court precluded dr white from testifying on first under rule four zero three dr white was not permitted to testify to the purported nature attributes of mr velazquez as culture and it just record highlighted for aspects of her expert report that were problematic in that vein the supposedly secretive nature of guatemalan mayan culture their purported belief in witchcraft the severe discrimination that the mayan minority had experienced in guatemala and a guatemalan stereotype that my and men are passive or homosexual second under rule seven zero four b dr white was not permitted to testify that mr vasquez was unable to form the intent to join a conspiracy or that he was not capable of forming the mental state necessary to knowingly and voluntarily enter into the alleged conspiracy both of those limitations were correct with respect to the rule four zero three ruling  cultural defense has been a little bit of a moving target so i think it's important to be precise about what exactly mr flask as proposed and when in proffering dr burns the cultural anthropologist as an expert mr glascock is said that he would be valuable in two ways first his background knowledge about guatemalan mayan society would help dr white parse out what was potentially factual from what was possibly delusional in mr velasquez is narrative second dr burns would offer a broad overarching assessment of guatemalan concluded on that basis that mr glascock was not suffering from delusions and she testified to both that consultation and her conclusion in front of the jury the district court correctly excluded testimony serving the second purpose evidence that the m culture is and i'm quoting from the defense of submission here or world of brutality and black magic there rendered mr of alaska's primitive a pre christian hunter sharpen stick in hand walking barefoot in the rain forest runs directly a follower of what th said in united states versus cabrera which is the trial testimony cannot invite the jury to put defendants racial and cultural background into the balance in determining their guilt so those twin aspects of the district court's ruling are perfectly consistent and correct dr burns's expertise may have some value in confirming or refuting for dr white factual aspects of mr of last because his narrative but it has no probative force if it's just presenting a generalized caricature of a particular ethnic group and suggesting that mr of alaska has acted in conformity with those stereotypes the district was likewise correct in its limitation under rule seven zero four b seven zero four b provides that in a criminal case an expert witness must not state an opinion about whether the defendant did or did not have a particular mental state or condition that constitutes an element of the crime charged or of a defense here i think it's most instructive to look at exactly what was submitted to the district court in dr white's expert report she said quote i to join a conspiracy or participate in an enterprise of criminal or not each of those conclusions improperly invaded the exclusive province of the jury and as such was appropriately excluded by the district court again dr white was permitted to testify as to her to diagnoses the medical basis for those diagnoses the factual history that she believed under lay those diagnoses and the symptoms and practical effects that accompany those diagnoses including the psychological  suffered from the district court then instructed the jury both during dr white's testimony and again at the end of trial that they could utilize this testimony to determine whether mr of alaska's had the requisite state of mind for the charge defenses the only thing dr white was precluded from doing was to draw that last inferential stop for the jury to express the state that because of her diagnoses mr of alaska's could not have acted with the requisite mental state that restriction was faithful to the t contest the first two of these criteria she doesn't contest that mr her was his coconspirator and then mr ayres statements were made during the course of the conspiracy the only issue i understood the argument to include the idea that it was all over or that there was no longer conspiracy exist at least today i understood both of the last two elements to be contested well judge i don't think that's backed up by the record so if you look at the third superseding indictment they came down in september of two thousand and nine that alleged that the conspiracy was ongoing all the way through late two thousand and nine and i took her point them to be about what the evidence was and came in with the indictment sure well if we look at the trial evidence one thing that we have going on roughly contemporaneously with this conversation between mr herrera and mr the altar is a separate conversation where mr of alaska calls mr of yalta after mr b all to has been arrested and we have a transcript of this call because it's a recorded so the only issue that we considered to be before this court is whether mr her is recounting of the daly city bar shooting to mr v alter was made in furtherance of the conspiracy the district court correctly decided that it was because violent acts against perceived rivals were the currency of this conspiracy there's ample trial testimony supporting that and mr herrera's comments to mr be all to serve to vouch for mr velazquez is mr blossoms a role during the shooting that the statement was made in happened at the daly city bart station and thus that mr herz statements were idle boasting rather than meaningful contributions to the to any aim of the conspiracy but that also is contradicted by the record mr b also was in a second vehicle along with as trigger men in this shooting we would argue that the admission of this evidence as in furtherance of the conspiracy fits very neatly in the mainstream of this court's precedents when it comes to internal communications of gang members in our brief we point to united states versus tomine where you said that statements made to keep coconspirators abreast of an ongoing conspiracies activities satisfy the and further and serve coconspirator statements i also want to just briefly respond to a point that my friend on the other side made about this idea that one hundred percent of the government's case against mr velazquez depended on mr miranda murderer so there's plenty of other evidence here that mr velazquez was a robust participant and leader in the twentieth street click of a mouse thirteen to the extent that some of the government's case did depend on about certain guns in code when they're discussing the murder weapons from the daly city bart shooting that not only confirms mr of alaska's his participation in the daly city bart shooting but also mr v alters testimony that mr time of the shooting and shortly thereafter near where the vehicle used in the shooting was ultimately recovered the following morning by the police so again there is ample evidence in the record both that corroborates the reliability of mr b alter testimony and that speaks to the broader ultimate issue here that mr of alaska's was a robust participant and leader of the twentieth street click thirteen unless the court has further questions we are not disputing that mr velasco has was taken in by this twentieth street click he was they embraced him they took him in apparently he was jumped in the question is did he know the bigger picture or was this just a group of family for him to to himself up to for protection in a culture in a community that he was completely ignorant about so no i'm not disputing that he was a participant he broke a cd over a north teigne head or or really much of the rest of that but it was mr v ault who said he was the leader he gave the orders he put this shooting together i saw him as far as the phone call from the jail that's meaningless because mr b l to had said testified that he saw mr velocity as without before they set out now you have to believe m which is problematic but even if you believe them then he said he already knew that he had the u c in terms of that confession so called confession in the jail it can't be a coconspirator statement when p l t already knew everything if he wasn't a direct eyewitness it doesn't mean he didn't know everything also as to what  as to what came in and counsels argument that it was adequate to put this defense before the jury it totally was not what was excluded and was critical among other things and would have been admissible it was not a sou an ultimate fact was dr white's testimony that mr de laski has suffered severe cultural dislocation a low level of education ignorance about american culture and societal value that could cause his mental illness so she was going she was prevented from going into the cause of his suicide attempts of his psychotic breaks of his depression of his p t she would have testified that he had a very limited grasp of his role in the events that's not an element of the crime and it's not a mental state it's goes to his capacity to know who he was within the larger m s thirteen group and she said his very limited grasp of the his roles in the event is typically symptomatic of the diagnosed illnesses so clearly it was relevant clearly it was important to the jury's full understanding and she said as a clinically recognized consequence of his psychological conditions he would be extremely susceptible to coercion and intimidation that didn't com dr burns would have testified that mr veloce guess is familiar with social structures beyond just a one on one dealing with people his lack of linguistic skill his lack of conceptual concepts what i call a frame of reference to know who you are who you're with what you're doing and why you're doing it was that of a small child the jury needed to hear these things mr velocities had a right to have arguments our final case on this morning's docket is united states recess f