civil when the defense is putting on a mental state defense so start with the proposition that it is not hearsay or in its non hearsay and when it is relevant as it was here it should be admitted in addition to that rule of law if there's any concern about how to apply it or any question about how to apply it i would like to the court the policy that overarching mental state type evidence and that policy has been described by this court in the  the case that bar mr bra is not permitted to introduce what i think is admittedly relevant evidence from his own medical records that were generated right at the time of his arrest and by the by a medical facility and he was a priva opportunity to put that before a jury the relevance of it is twofold and the importance of it is twofold both in the context of a simpler time in a bear but also in the context of harmless error and that is if it was those records and in fact within them in particular some facts i'll describe in a moment both corroborated mr barofsky it's mental specifically that it was the lou general that there was some idea some evidence that he was psychotic so in a general sense it corroborate those ideas in that defense but then more specifically it reverted and it answered what became the government's main theme and i would submit most powerful theme and theories in terms of the way that they tried the case and into their attempts to tear down his mental state defense what i mean by that is to the second as to the specific rebuttal that it would have provided is that throughout the case the government made much of the fact that mr bra has put on quote seemed normal and seemed coherent and that he apparently failed to reveal his specific delusions to the primary officer when he applied for entry at the port of entry into the secondary officer when he was taken to secondary and then to the interrogating officer after that through each one of these witnesses and this is contained in the e r you know that you are seventy six and eighty three in eighty four and ninety two just by way of example the government basically made a point if you was really delusional if this was colloquially what's so significant about the medical records is that not only do they show he made statements exactly consistent with those delusions everyone is after me i believe i'm missing my kidney you know and statements that were described as delusional but perhaps more importantly the medical records revealed that he wouldn't reveal those delusions unless he was specifically asked and this is a page three only of the e r where the valuating doctor writes quote when specifically mr brock hospice presenting that he did have those delusions they were real but his delusional structure was such that he was hesitant reluctant in the words of the doctor to just blurt them out to the first person they saw so what would have been reasonable misunderstanding the question i'm not arguing is that someone really was beckoning him across the border that he was actually brought over by the f b i or anything like that it is specifically what he thought what was going on in his head if the court question is more along the line go ahead they would have had to ignore what they would have been given with those statements from the medical records or the context in which to evaluate those statements given the fact that according to the delusional structure that dr myers described he did believe that he had made prior efforts that were reviewed and he did believe that it was apparent if they make it across in a cia and f b i didn't want him to get across so it it's not sort of the smoking gun that is that was presented as to the jury that he said i've been through this  coming back there for the delusions are true if armed with the evidence in them records showing exactly what they were and the fact that he was adamant about them and that he wouldn't reveal them immediately it makes some sense in a consort of the fit into the structure that what i did is hire a forensic psychologist now granted not enough money with an m d but somebody who for years if not a decade and a half had worked for san diego to period courts made a career out of taking medical records and explaining and lay person terms what this means and using them to make a psychological diagnosis so i did hire a doctor of psychology to do exactly that to proffer him as a witness to come across that that was dr judith myers who did testify at trial what's significant is once the court had made its record and its ruling that i sort of you know submitted the issue over objection that i couldn't get the records and i thought fine i will use dr myers and at a minimum she should be able to number one tighten those delusions and psychosis and then say and here's why i think that is because you know as a forensic psychologist what i do is look the records and here's the specific evidence i'm pointing to and what you would have done if i had my way with those documents and point out to the jury exactly what evidence that reflects on one's mental state is admissible again under this explicitly liberal policy that the court has adopted when it comes to an embryo of an offense and i would just point out that this isn't some insanity hurdle that we're trying to get over this is an element of the defense that he had the specific intent to do it so i would argue that becomes even more germane and even more important to be able to combat that when it is an element that the government has to prove i think i left the thread hanging that the the court discussed you know could you  appropriate way to put in this evidence of through that doctor well as a legal matter the rules of evidence say otherwise i mean it's simply a business record under you know three six minutes perfectly appropriate and i proffer the correct  declaration under nine o two eleven to get those into evidence so really it doesn't have an entry question there's no problem whatsoever with putting that in now if the question is why not just call the doctor sort of the back story that is well it's a medical doctor who's not happy about coming in to court in general they want to be paid for their time and they're a little bit irritated when i would put to the court becoming hostile if the idea of being drug into court at the end of the day the evidence i wanted was in black and white and more lies in a report evidence and it's federal rule of evidence one of six if the government thought that i was trying to twist anything or that my portions i wanted to hear it here were incomplete they have at the disposal the rule of completeness under one of six and they certainly live in liberty at liberty to put in anything that they wanted to round out what the reports meant in the eyes of the jury and you were given the opportunity to reject the documents when you know i certainly couldn't and if i was allowed to put in documents as physical evidence i would have redacted portions of the court thought or word unreasonable or prejudicial if you had rejected the documents to get rid of all of this jargon and all that stuff then the court's exclusion of the evidence because they were confusing it with a lot of medical jargon that would proposition that if this report has some specific concerns about confusing material or prejudicial material the practice is to read back those portions and to let in the document not the wholesale exclusion happened at the district court level but by the time we actually the kind of the rubber met the road in terms of the legal significance of this when it came to the mistake of fact instruction although i was deprived of a good deal of the evidence that i wanted to show the jury in terms of the delusional structure there was still some evidence not nearly not enough for my purposes to be an effective advocate but there was some evidence that he did believe that the federal government wanted him to cross the united states border  the border patrol basically do they have leave to consent to entry on behalf of the attorney general that's not a point it was raised by the government in the district court or even in their briefing but only to the question to the extent i can under  context there was a claim that the defendant thought that he was a united states citizen that there was some derivative citizenship i question and the government's response to that was well what he's making is a mistake of  essentially you can't it doesn't negate the element much similar to the argument or at least to the hypothetical posed by the court well even if that's true that's a mistake of law and an f b i report a patrol agent can give permission to cross what that panel held squarely was that when it comes to an element of the offense a mistake like that becomes a mixed question a fact in law you can frame it as did the defendant think that once  when we have cases that say will we accept statements or delusional or minimal dollars in a couple years after the event how do you get around the court not having committed trying to kill another phone call supplemental actually record six hundred thirty three according to her he's on the phone he's forces more sales probably well they are you arguing that because the court let from a cold record without explanation from one foundation asked back and forth between the officers and mr brodsky answer yes question about where he was born and where he was going to answer i was made aware of that question and where you were made aware of the fact the defendant appeared in answer those questions normally and didn't otherwise of your crazy for that he was motivated by delusions that he did not have a specific instance to enter and that if you do not harm you on a reasonable doubt that he did the specific intent to break the law and he's not guilty in other words if you can  myers who is a forensic psychologist it's true at the time that the district court is making its rulings in an attempt to work to put on the trial such as i was permitted to put on the trial i said i will explore the live witnesses and as i said it's not on the record but it is kind of the they were hostile the government had gotten to them they wanted money to come to court and they were hostile to me feel i didn't want to use what was in black and white in the records and that is perfectly permissible under the federal rules of evidence and if the government thought that i was twisting anything or thought that that was incomplete they could have provided that either through the records or through the live witnesses themselves lest there be any concern because i think sort of the overarching theme that the government sounding and maybe the district court was concerned about is well you can get a witness here so that you're not twisting the language of the reports or you're not misleading the jury i mean i think under four or three that's you know this is a misleading and i just don't like the court to look at it you are three zero to three eleven and see if it's misleading what exactly is in black and white in there i should to that the defense didn't get to get in a lot of other evidence and in fact when dr myers finally was able to begin to describe the actual delusions themselves as a doctor the court the district court revisited that issue the next day and said no you don't get to talk about any nods or permission you don't get to talk about those delusions inclosing  doctor talk all she wants about what generally speaking in encapsulated delusional structure looks like but what i needed and what the jury needed was the facts generated at the time of his arrest suggesting corroborate that there was that encapsulated delusional structure the defense theory of the case instruction and it's true i proposed several that set forth the defense theory of the case the problem is that one of them then one of those given just generally says you have to have specific intent criminal intent which is a fairly exists in the circuit and where the rubber met the road i say again in this case but that he thought he had permission and permission is an element it's a mistake of fact that was the vehicle that was necessary to let the jury deliberates upon the exact evidence that was permitted they could believe it they could bring they could not believe it but they needed a legal framework more than just general criminal intent with which to look at that i would just like the courts to spin the guy into escobar give right which are the cases the say that when you deny