misspelling that apparently the marshal service with the dade county jail thank you for clearing that up and i'm sorry i'd include up clearly but i did the best i could i'm sorry i missed the i know i want to start play saying that it is our position that the district court judge abused discretion by failing to grade to continue its in this letter and this case did not follow anywhere near the normal trajectory of cases in the district court in this case mr hoar thought at the time i was appointed and to go public defenders of this was he in competency defendant let us say it's easier for me you know it's easier for the work and he was declared companied and the hearing within four weeks of that we had a plea worked out to go there the government agreed that mr harth on the defendant was not going career criminal and it was written in the police it was one of the factors there were no prior and everything was good and today before sentencing in the piece i was changed by the department of probation who said they found convictions under a different name were different names and perhaps it myself because it was going to either brady i mean there's d n a from god the the weapon was supposedly the weapon the defendant possessed in this case and about a woman whose finger was shot off and got nerve damage about using a child this human shield about all these events that the judge girl let in only because she said there was no d n a no better way for the government to prove it wouldn't have committed if they dare not be in the defendants in the weapon that everybody claimed he possessed which is the subject of this case that would have been a lot weaker if  would really have done your client all that much good well whether there was a rifle or not is based on the testimony of witnesses who related very close to each other in a neighborhood where there are some interesting ties and i would guess you could say that feels because he's almost there are different but it would have helped either way because if it wasn't on this weapon the only what they had to claim to be possessed they would have had to mostly perhaps rely on rifles they never flew out and the rifle d defendant played generally not guilty and there eyewitnesses may be a video showing up a partial and they get the defendant and whatnot the defendant has a constitutional right to have tested the  a it seems like there was no fair opportunity to have a trial and without being able to test that d n a in this case i feel that i was not able to  the mere formality then attorney in that regard help me with this my records show the government disclosed in discovery on october twenty one twenty fifteen that there were d swabs so we're not dealing with the failure to disclose is that correct that is correct so your theory is the defense has no duty to test until i learned the government has tested it seems like you had ten so here's here's my problem maybe you are lying on the government to test it but they never gave you a test report right that is correct so you pretty much knew they had tested it but i did not exactly this came up the day before sentencing we the question probably should be why would he plead guilty if there was a possibility that the d n a on the gun was not his that someone else because he believed that the plea was his best interest based on the guidelines but that it will only but it would only be in his best interest if he didn't have a defense as you pointed out somewhere during all these discussions as to how level that it may be less than your brief at the ranch together but you pointed out that if the d n a test came back that it was his d n a that would be very difficult for your client and might have made it easier quite frankly because of the sam what we're trying to say is that would have been devastating if his d n a is on that because that's maybe you didn't want that to come back well it would have made it certainly more difficult i mean one could always  ok i want to make sure i understand closing argument i do think you stressed during closing the government had to show his d n a on the weapon they hit you put it on them and you made that argument to the jury is that you've reserved five minutes for a bo morning mr mask in the morning your office may proceed you may i understand you'd like me to let you know when the yellow light comes on is that correct that would be very much appreciated your honor not a problem thank you your honor is may please the court  be half of the united states with me counsel table is just schuster one of the usas who tried to case in district court overwhelming evidence including the unrefuted testimony of three eye witnesses demonstrates mr hawthorne's guilty your honor should affirm his conviction and sentence with respect to the continuance issue in addition to the questions that the chief judge posts about the utility of the d n a evidence in any event i think the chronology here really tells the story the chronology begins as judge hall pointed out at the end of two thousand and fifteen when the government produced to the defense a report march eighteenth twenty six mr the district court rather scheduled mr hawthorne's change of plea so mr hawthorne in that span of time twenty two days did nothing to test the d n a even though the government had made that report available to him the previous year and in fact the government had represented on the record that it made the d n a of the builtin as well following that  dated but i thought it took longer than that to get d n a test back the we don't know that from the record but i mean certainly the defendant would have been in a much stronger position to move for a continuance had he and sixteen the defendant filed an additional notion for continuance where he didn't even mention the need for discovery or the need for d n a testing it was only on the second motion to continuance filed on august eleventh that he did so is you have appointed counsel at trial he did your honor ok so there may have been a question about whether he could they could afford to have the d n a swabs tested right e if there was such a question i don't believe that issue was raised below or it was brought to district court's attention i mean i think i don't want to put words in the chief's mouth but i guess when we're when we have all we want to make sure that the expenditures are appropriate expenditures right if you know i guess if you know that you're not going to get the results back in time to use the trial it might be hard to convince the judge to sign off on th s right but having said that the motion was on the motion for continuance relevant to the d n a was only filed roughly two weeks before trial i mean as the chief judge pointed out earlier actually maybe the social pointed  out earlier surely the defendant would have every incentive to have sought the d a before he decided to enter into a guilty plea the fact that he declined to do so or fail to do so is very revealing and of course none of it matters if it argued about it at length in closing and the government didn't try to suggest well it could have been on that i haven't read the whole thing do you know that's right that's absolutely right i mean you know the government never claimed that there was any d n a evidence and in fact you know arguably the decision not to test the d n a place mr hawthorne in even stronger position than he otherwise would have been in because as it stands mr hawthorne was able to point out that no d n a was tested and also to make the implication that surely if his d n a were on the gun it would have been tested so in addition to you know making the point that a you know that would have been made from a negative test result he was also able to make the government look like it was hiding something from the jury which places defense an even stronger position than it otherwise would have been at the lab that the same to get the results of the test would have been that his d n a was on the i mean if if  the test has shown that somebody else's d n a was on the government not his it would have been a stronger position than if it hadn't that tested so that's that's that's certainly true but you know but in most of these cases where d n a is tested the results come out inconclusive anyway as they did with while that there's no nothing in the record about that absence right there's nothing that i mean we know that from the record here that the fingerprint testing did come out inconclusive but which is almost well i'm also records now but i mean court thank you counsel thank you your honor have some questions about whether you're allowed to do that generally you can bring up a new issue a new in the sense you didn't talk about in your opening argument because that deprives the happily of an opportunity to respond to that i will leave that up give him an opportunity to respond as well just very briefly i did tempted to call witnesses filed a notice of the expert for a witness to just testify about the form function the characteristics of the web one of the weapons it is she would make a forty seven rifle it was the witnesses the eyewitnesses credibility was it is she because they claim without ever noticing it that though we mr hard a pistol in his head which was recovered subject the charge but he managed to pull with a k forty seven rifle out of his waist and as if it was a saturday night special this is pretty much impossible and let me ask you this council i'm not sure we get to the discretion exercise their own on whether you should be allowed to call expert and i'm not sure we get past the rule sixteen day once a requirement that your motion set out not only the expert not going to formulated the only that he was an expert on firearms and i don't think anybody would question that and his devised the wake of the gun the size of the firearm how me the way people on the jury could explain to them how big this thing was and how would were because their food with this is testimony seems far less credible but but that's not that's not what you said in the motion you didn't say this is his opinion they don't test and this is the basis for it and if he wasn't going to testify as to an opinion i'm not sure that as an expert testimony myself of what that meant that the form is its size in way its function is as a semiautomatic wrote about it weapon it fires projectiles it expels casings and so my doing so they should have again whether you could in fact bring one and that was uploaded and that they marshaled certified was uploaded and then you ask the judge if you could bring in i photograph are specifications of the dimensions i believe i did but since the web was never found the judge would not allow it because there were different configurations and i could not specify which exact configuration was other the code with this is that it was a rifle who is a chopper or honour's the expert disclosure in this case was insufficient and extremely vague on its face all it said was that the proposed expert was going to testify as to the characteristics of semiautomatic weapons the next thing we heard was that the expert was going to testify as to the probability that somebody could fit a semiotic weapon automatic weapon in his pants  the next thing we heard after that a trial was that the expert was supposed to testify as to whether bullets could fall out of a clip that was dropped on the ground so it almost seemed as if every single time this issue came up the nature of the proposed testimony changed and at no point as the chief judge pointed out at no point where the bases or reasons for the proposed experts opinions ever disclosed so the government had no way of preparing the way of deciding if they want to hire a rebuttal expert and as the district court put it the government would have had to be clairvoyant to figure out what exactly the defendant played on putting on