jury jurors had followed each instruction they could not have convicted or piper after all there was no evidence of five hundred grams of pure methamphetamine in this case i presented a demonstrative exhibit to the clerk hopefully the clerk has been able to distribute to the panel on page twelve for most of the what is your demonstrative that's what was originally in the record i have highlighted certain portions of it in either yellow highlighting or red highlighting i'll just make some illustrations and also put a couple of  hrases of how it should have been written in blue font so we've got black red blue and yellow that's correct specifically the word coconspirator applied the existence of a conspiracy in this case and violated carlos cortinas due process rights also on the second element of the object of the conspiracy which was the object with spears in this case as you know the section a forty one a it's simply talks about a meth and that i mean alone in other words in the record significantly there's no evidence that there were five hundred grams of methamphetamine in this case certainly there is evidence of a mixture that you represent in the independent and trial i did not  what's your strongest case i mean under we're looking at the entire set of during jury instructions and if the district court told the jury got to keep each offense separately why wouldn't that be sufficient on plane air or a view they would presume to follow the instructions so this notion of an implied conviction on the conspiracy what's your best case that that type of implication confuse the jury he hear no i am just asking you for your best case where a circuit court is found plain error in spite of the instruction going to the jury that they have to keep each count separate is is a case first impression  to make matters more confusing for page eleven payments in dope that sense was alice has been in jail who are just a little slower who was in the conversation at the jail and when did the conversation occur the conversation  d sometime between february twenty first and march ninth ok in the conversation who was present in the conversation between caracas castle and garza or they were present ok so at that point right at the beginning paper was aware of the lease presence and the statements castle had made the really over her there's no there's no evidence in the record that says he was aware that you lie overheard until and when you requested his release presents a trial it was how much time but what i was in the trial attorney oh it's my understanding from the record that piper handed his probably attorney this statement from the line on march ninth subsequent to that he was transferred to a different jail facility while counsel visited piper at the other jail facility reviewed this statement with him set the veracity of it and then made arrangements to speak to castle or contacted attorney for counseling for it why castle's attorney did not give mr press because your time is limited since you split could you give me the record cite to the clearest objection based on compulsory process when at any point pretrial during trial when you're trying to get cast as testimony in at sentencing when the new trial  motion is decided when did counsel predecessor counsel say we have a compulsory process objection and specifically say but by the record it shows that he made it clear when you say by the record in the reply brief you say you cited the sentencing transcript where the new trial order was denied is that the clearest objection no sir what's the clearest objection that you think the district court should understood it was a constitutional objection based on the compulsory process when did it most clearly get made in his motion to continue ok in the motion to continue  in the trial transcript begins with the seating of the bonaire there was no pretrial hearing when the district court asked piper's attorney to introduce his witnesses or to ask the jury whether they were familiar with  attempted to approach the bench the judge had nothing to do with that that's when he wanted to make that it's appearance that's what he wanted to make right there to the judge that he wasn't afforded compulsory process to obtain a lie and then after the jury selection is when he raise the issue of the motion to continue and the judge says oh you had a motion to continue that's the first the judge has your argument to us now that the two are in discussing in the motion to continue t stay arguments are identical to the compulsory process was that the abuse of discretion occurred in denying the continuance is that your stronger argument i guess is my question because that's clearly preserved yes that would be the united states marshal to produce ill i for court that made it pretty clear that a lie was an important material and favorable witness the government did not comply with that order they didn't produce it live for court and their argument was this case even if statements were against castle's interests there would have to be clear corroboration as to the trustworthiness of this jailhouse conversation correct yes and certainly there was how would you i know anything he's from midland he's  completely unrelated to this how we know such intricate details is they work coming back from high school what's your strongest case on williamson that this would have been admissible ledo for evidence but your strongest case the please the court john pelletier you on behalf of the united states to turn to your honor's question about at what point any compulsory process claim was raised in the district court the answer as it was never raised any any kind of constitutional violation in the constitution or the constitution was never invoked in the context of this motion for a continuance or the motion for a writ to obtain eli's testimony if you look at the motion for a continuance the mr piper actually invoked the standard under the speedy trial act erroneous lee invokes that standard which is really only pertains to whether the dish records should exclude time from the speedy trial clock there  no invocation of the sixth amendment in the compulsory process rights there's also no indication in the post trial in the most new trial again at that point the defendant just said raise the interest of justice the but from start to finish they were saying we only have two witnesses it's the people that said that we were all framed by rizal us so pretrial and then born here to the jury and then they're desperately trying to get castle and then they're desperately trying to get passes for the moment they've got to know whether witness the new trial motion says we had to get the guy the district court says we want to get the one witness that will say you're framed and somewhat extraordinary that this witness actually put into writing that's a little bit unusual jailhouse snitch conversation seem unreliable but really put it all in writing that it was a big framed so it seems pretty obvious to a district court that this is an objection to we need  discretion it's not always and it's not always evaluated as a compulsory process claims i'm just saying given start to finish here everyone knew what what they were saying which is we need the service to compel the one person i mean they've told the jury you're going to hear from this guy correct your honor and they got those under no misapprehension because the government's trying to get into yes your honor but there was no there was no suggestion that this in any way triggered in constitutional protections but even if requires a shilling at the anticipated testimony would have been material that has to be a reasonable probability that if the jury had heard this testimony it would have reached a different outcome at the trial now is that distinct from harmlessness answer is that saying there was an error but it's harmless well i think it's intermixed with it it's kind of when you have when you for example it's like a it's it's like a brady claim where it's part of the part of the actual substantive constitutional violation materiality which in some ways overlaps with a harmless and it wasn't the frontal argument you made the distort you made the argument well this guy's not competent turns out he ends up being kompany it but it was a secondary argument that if he were competent it would be inadmissible we make the argument that he was not competent at all to testify we made the argument that he has competency was under question and that was one aspect to for the court to take into in its  exercise of discretion we did take the position that his testimony his proposed testimony would be inadmissible under the hearsay rules because it was not a statement against interest we're talking about castle the inquiry is whether it would be against castle's penal interest yes and he did take the fifth yes but you have to look at the actual substance of the statements the contents of the statements well we don't look at the substance of the overall statement we look has sentence by sentence right but if you look at what i would testify to about castle's statements and you look at the statements that we have to go through and conclude every single statement attributed to castle isn't against his penal interests i think that's correct you're ok and  guy turner was actually piper that doesn't implicate that doesn't implicate tassel in any kind of crime he's saying that castle spoke to garza who had made it to framing piper the government wants wouldn't seek to introduce it an castle saying you set me up which is not in any way incriminating toward castle and then garza went into this whole spiel about setting up piper and that wouldn't be in missed that wouldn't be something we would use  against against castle at a trial against castle and simply because he invoked his fifth amendment right later doesn't make those statements in any way incriminating obviously he pled guilty to a conspiracy to drug conspiracy so if he's going to question about his involvement or that he his fifth amendment right what we have to look at are the statements that castle supposedly made to piper in prison that you or i supposedly overheard in those statements we would simply we simply would not use those against castle in a trial it's not similar to the statements in thomas for example which is a case that the defendant raised where one of the there were three individuals charged with robbing a bank and one of those individuals said oh you shouldn't you should drop the charges basically should drop the charges against this other guy bill because he had nothing to do with it well that suggests that the person who made the statement did have something to do with it there's no end now of his statement by castle suggesting he had any involvement in criminal activity if you read line by line eli's hand written document it simply said that castle confronted garza about a suppose it's set up and then garza told castle all this information about piper again that would not be admissible but even if you were to assume that it wouldn't do you read the description of who what where in terms of who was around that conversation and when it kurt which i told you when piper would have known about the note or the and fifteen i believe and that during that period of incarceration as we understand the record that's when this conversation with castle occurred that i overheard so i was in the february march  have the no we have in the we have the the statement by defense counsel that he obtained the note at the detention hearing on march ninth and at that point certainly defense counsel was on notice and there was not a motion for a a read until a week later on march sixteenth but even if you would assume that the these statements were admissible as a statement against interest they're still not material because they're not the defendant for a few reasons number one they contradict substantial evidence in the record this notion that piper had nothing to do with this drug conspiracy and just some fall guy that was picked out of thin air because cortinas had been dropped off by his girlfriend just doesn't stand up to all the phone records in this case for example you know phone records between  cortinas and paper on in september of when that delivery was made many phone calls you know phone calls between garza and piper your phone calls between rizal isn't piper that is totally inconsistent with this notion of piper being picked out of thin air that's got a that's just a harmless  argument they at least get that come in and you can rip them up in cross examination well i think when you look at materiality when you look at whether a jury presented with these statements would have there's a reasonable possibility a reasonable probability not just a possibility reasonable probability that the jury would have reached a different outcome you look at the whole record and so it's like it's similar to break if you look at that supreme court decision that where this derives from the valens wella bernald decision and it discusses this in the context of deriving from brady this materiality standard so when you look at whether there's a reasonable probability that the outcome of the trial would have been didn't different had the jury been presented with this potential testimony look at the whole record and so that includes these phone records which are totally inconsistent with this note from what he overheard in his testimony about castle's statements you also have to should take into account the potential reliability incredible the of you lie is a witness and at the time he heard this he was under evaluation for competency and so they were pleasant about his mental stability at the time you have the notion that there is that in addition the defense counsel had an opportunity an said yes i have once or twice and he said did you have a conversation with him yes i did have a conversation that's what guys admitted to having a conversation with tassel in prison he said for maybe one or two hours they spoke to each other and he said did you talk about this case he said no not specifically he wanted to see my paperwork and then he said did you talk to him about standing up other people in this case and he said no and then the defense counsel stopped so you have an opportunity to continue other pa along these lines and a full opportunity to try to flesh this out with garza so if you take into account number one the but all these different arguments they are that they're relevant if we find it wasn't preserved because they go to one of the various planes on the plane there material is just capability of inference there's materiality and then you could also valuated under the countervailing interest so when you look at a compulsory process claim to know what's what do you tell us is the best compulsory process claim case if not plain or if we're just assessing where a defendant pretrial is asking to have witnesses tells the jury they're going to your witnesses the government is to go get the witness and then the witnesses who got in there what's the best case that describes how we it wasn't a witness that the government was it that was incarcerated that's that's crucial because the cases you cite are well government acted in good faith they didn't impede your ability to go get somebody out there in society told you where he was i would like a case where the government's got the guy in jail so the only people that can get him is the government but then they don't barkman and he called the color garo here and in those cases you had prisoners in this working is name and the courts evaluated these abuse of discretion under various and took into account very the strength of the evans own sparkman the court there what were the probative value of this evidence be and why was it was really a timely request because he asked i think two weeks before trial to get this individual and to call a garrow it was it was during trial but there was two days before i think the defense case was going to go on and the and the district court as in this case ordered the the marshal service to  get the witness and the marshal service and we just can't get in there in two days and the defendant said well you judge can you go to order them to get in there quicker and the judge said no i'm not going to do that and due diligence is faked into the compulsory process cause is just absolutely on or it's there's a first look to materiality that's a that's and a necessary requirement and then even if you find even if there's material materiality there's this notion of countervailing interest will in any case in any case where you have a denial continues the court could have continued and that's why a court has to exercise its discretion and evaluate all the circumstances and that's why this is really of evaluating hundred m p s of discretion standard because the district court is really in the best position weigh all of the circumstances and to determine whether whether due diligence and materiality of value and how all these things intermixed to to justify a continuance in this particular case here or your point of view the witness was not pretty because the marshal service went to the bureau of prisons and said we need to bring this guy eli to court to testify and at that moment in time he was in the custody of the bureau of prisons pursuant to an order from the western district of texas putting him in the custody of medical professionals in their bureau of prisons for a competency evaluation so those medical professionals told the marshal service we can't give them to you we can't get in the last number one are the competency evaluation is finished or they what judge in the western district of texas says we can give them to you right now to what extent were the judge's decision based upon his  a lot of confidence in the credibility of this witness or credibility of the story that he was telling well the district judge said i deny the continuance on the grounds raised by the government and we were real questions as the reliability and credibility of and that's it that's relevant in two areas number one you look to general materiality whether there should be this this testimony the word credibility and reliability issues would have tended to influence a jury but you also look at it through the lens of the through the statement against interest because even if you assume that these statements were against castle's  depending on what the person that there were in disha trustworthiness and here they are in the general circumstances of this case when you look at castle being in prison and when you look at him basically passing conclude that that was part of his rationale yes he adopted the reasoning of the of the government that's both in our written motion you know presentation at trial which is at twenty seven in the end of the  oral at a broader level i doubt it certainly doesn't look good when the one person is willing to write down the defense refrain the government happens to have and we get it because the government says he's got confidence from later on or we need a t for all the reasons we discussed whether it was plato review or whether it's you know about there was no compulsory process violation this case would ask that your firm thank plain error what was done to the jury instructions in this case on top of it was plain error under section two hundred forty one a a one thank you my piper dave had written statement to counsel in court march fourteenth counsel was able to communicate with castle and utilize attorneys to get permission or not permission to interview their clients marxist inc council meets eli at the other jail confirmed that you i had handed him this note march sixteenth high profile applications for writs of habeas corpus at test of the common for castle and eli s that sounds convincing to me so then it still comes it's it is a big concern of mine that the district was never told we have a compulsory process objection here it was so much focus on castle admittedly castle doesn't take the fifth till late but even when castle does take the fifth as i read the record the court has never told him that we have a compulsory process argument here instead there's an apology that they're asking for a late continu the right to offer testimony of witnesses and to compel their attendance if necessary isn't my terms the right to present a defense the right reason to defend us for some of the facts as well of the prosecution's to the jury so that it may decide where the truth lies incriminating the castle your honor no just quote me the one proposition that is most incriminating knowledge of the what really happened in missouri is knowledge ok his claim that they didn't they were they were coming back from hyper sales they were coming back from the other news it took the fifth amendment nobody argued against the government didn't ask him to say well wait a minute if all you're going to do is relate what garza told you then you don't have a  next case we are