i think the court has stated my name is dana wagner i'm here on behalf of the united states with the course leave i would like to try to reserve three minutes of my time today for rebuttal work here because the district court committed to independent legal is inconsistent with the text of that statute inconsistent with this court's controlling precedence and also would lead to some a logical and highly undesirable consequences the second they are was that it refused to consider sworn declarations submitted bad motivation test for addressing such contributions to absence to arrive at a different standard a reasonable mis review standard the district court performed would we submit is a highly unnatural reading of the statute where it took the other reasonable means language in a five and which refers to alternatives to service a process for bringing a witness into court at the day of a hearing and read and class that into just reasonable means and read it to modify or collapsed into the subsequent independent provision which addresses the circumstances in which a party has contributed to an availability we believe that's not attached to a supportable move it's certainly one that's not consistent with this court's analysis in cases like  the and it's one that not only strips the provision which addresses the situation of independent meaning but create them a logical result because either this reasonable means analysis for instance would have to apply to all arbitrary result because that would mean a party could contribute on reasonably to one form or to some forms of on availability but not another we don't think that result is one that there's any reason to think congress intended we think it's a bad reading and we feel th been correct to admit their prior statements because there had been no bad faith and because reasonable efforts to cure their present post deportation had failed if the district court were correct and under reasonable some very bad policy consequences if this type of reading were at counsel before you go into the policy issues i'm interested in your reading of olson quoting here this is in that case that the government in quotes inadvertently deported the witness correct in wind which is a case you didn't cite the deportation occurred before criminal charges were filed against the defendant correct in there an important distinction in this they were supposed and deported upon their assurances that they would return and that was found to be reasonable it's true as the courts said it was off the times that there was no bad faith i think it's more important that's true is of course preparation despite the lack of any incentive to do so he had testified he had done everything we had asked of him we believe that he had ample incentive to return given that he had family here he had been here for twenty years he would not otherwise be able to return to the country it did not seem impossible to us that he would take advantage of the opportunity to return here as a free person and have that opportunity to spend time here at the government's expense that did alternately prove correct or at least we don't know if approved reasonable action for him to take it's certainly plausible he would come back and we frankly you know believed him and when his attorney came to us post mistrial after he had done everything we had asked of him and cooperated requested his release and we were able to arrange for that and receive her assurances and his assurances that he would come back we did not think we had a basis to continue to detain him and i believe this court looks at the material witness warrant statute which is section thirty our feeling was that if we continued to detain him court the district court would certainly have had rightfully chastised for that we simply thought he would return and we didn't think it was fair to continue to maintain his incarceration he was becoming sick or in custody that was certainly a concern of ours and we in good faith felt that if we released him no part would be prejudiced he would come back i should point out also i think that the party that had been most severely affected by his inability or unwillingness to come back has been the government he's our witness he was actually our most compelling witness at trial we would far prefer to have him here as a live witness that to present his testimony through it's a cold transcript that's not in our interest and that is why we have endeavored both before and after the district court issued its ruling case and be continued to endeavor to this week to maintain contact with him and convince him to come here as a live witness that remains our preference certainly not  case as the man was which the defense is lying upon and some of the other cases there are possibilities we could think of the government is deliberately trying to remove a witness from the jurisdiction that would certainly be inappropriate and in permissible  and there's no allegation that that's what happened in this case i would like to suggest to the court that if the district court's reading were accurate and courts were to be able to second guess good faith decisions to release material witnesses in this manner even when those witnesses testimony had been fully preserved that would not the result of be good for anyone because that and not only the government but any party who had a material witness would essentially be for to keep them detained as a matter of course that's not something the government wants to do i submit that it's not something that the defense bar would want to do i could easily see getting an amicus brief in this case in support of the government's position because the regime  statutorily set up and i'm referring to again thirty one forty four also ruled fifteen eight to discuss this depositions in which material witnesses may be released following preservation of their testimony is one that benefits everyone and congress has determined that that's the appropriate balancing of the fifth amendment rights of detained material witnesses against the sixth amendment rights of defendants to confront and cross examine the witnesses against them or right which we were aware had been fully candidly acknowledged below believe it's on page one hundred two of the record is that even a videotaped deposition which was a possibility that was discussed at one point would not have been admissible if the witness were subsequently released and became a valuable and we submit that that cannot be the correct result because that's the scenario that's explicitly provided for in the federal the court and josh gone from the federal public defender's office on behalf of the athlete in this matter yakov you that i'd like to begin this morning by reference to the actual text of the rule that we've been discussing which usually eight zero for a five and what that rule says is that a witness is unavailable if he is absent from the hearing and the proponent of the statement is unable to procure his attendance by reasonable needs the rule imposes no limitations on the time period during which the proponent has to use those reasonable means to procure its witnesses attendance as such the most natural reading of this rule is that it requires consideration of everything that the proponent has done to try to procure that witnesses attendance here that would start with the government's decision initially before the first trial to detain the witnesses throughout the period of pretrial preparation and throughout the trial itself it would include consideration of the government's decision to release the witness with the full knowledge and actual intent that that witness then be allowed to leave the country and go back to israel and it includes consideration of what the government did after the witness left the country in order to try to bring him back what the district court did in this case and what i would soon it is a completely natural thing to do under the law itself and also under the cases interprete ing it is consider all of those factors and what the district court found to be unreasonable was the decision to let the witness go on his promise to reappear which is very very different from saying the government was reasonable in trying to bring back a witness through no fault of its own had left the country i have made this point i think quite clear in my briefs but i can't emphasize enough that there is no support there are no cases that take the government's position in this case or that adopt the limitation that the government is trying to read into the rule the there really aren't very many cases and rising there are very many cases that deal with a situation like this where the government makes a decision to let  right after a five states the declarant is not unavailable as a witness if exemption refusal claim of lack of memory and ability or and i know it absence is due to the procurement or wrongdoing of the proponent of the statement for the purpose of preventing the witness from attending or testifying if we apply the construction of the rule that you're propounding here asking us to adopt wouldn't that render the improper purpose standard kind of so perfectly honest i don't think so your honor i don't think so at all i think that the way the rule is structured there are two separate considerations that affect the end of a the ability analysis a witness may be unavailable if he satisfies the requirement in ito for a five and yet that finding of an availability would be precluded would be barred would be reversed so to speak if it could be shown that the reason for the witnesses being unavailable under re five or any of the other clauses was due to the wrongdoing or the improper purpose of the from your perspective it's a two pronged test the reasonable is for the entire time frame work and lack of wrongdoing correct you're correct and i think that the lack of wrongdoing applies no matter which of the eight zero four a one two three four five happens to be the basis for the finding of an availability to begin with and i think that that the government's urging of a rule to the contrary is not only support unsupported by the text of the rule itself but also by the case law mr comey in your argument you said there's no authority supporting the government's position and  i'll go look at the briefs again but i was of the impression that judge pryor have relied on extra circuit authority i think that's right your honor he did you know he relied on extra circuit authority to find that in a situation like this it is proper to consider everything that the government of you say there's no authority you mean in the united states or do you are you saying that the extra circuit authority is not really it doesn't have any force let me be very clear i'm saying that there's no authority in any circuit for the position that the government is urging for the limitation that the government is trying to read into this rule whereby it's never appropriate to consider the reasons that the defendant left the country in the reasonable needs analysis i believe that there is authority and i can see that it's extra circuit authority but there is authority for the proposition that it's proper to consider the reasons that somebody left in a situation akin to the one we have here i think the most analogous authority is the man case from the first circuit there the government i had a witness who happened to be a  seventeen year old australian woman it took that woman's deposition it then gave her back her passport he gave her back her plane ticket and it asked her will you come back if we need you to and she said yes and at that point she was removed from the country what the first circuit said is the steps that the government take to procure that witnesses attendants were on reasonable because the duty to use reasonable means to procure the witness includes the duty to keep that witness or  use reasonable means to keep that witness from becoming absent that's the kind of situation we have right here and so when i say there's there's no authority i mean there's no authority for the government's position you know one of my weaknesses and this eight zero four eighty five is one of twenty nine exceptions in the federal rules of evidence to the hearsay rule and they are detail than their number and they are detailed in their text and this particular rule that we're examining talks about the on availability of the witness and the reasonableness of efforts to secure the person's attendance and what it doesn't say is that it doesn't say anything about how it that the witness became unavailable and i guess the difficulty that i have with your point of view is that the language that you articulate or a spouse simply isn't were trying to push a square peg into a round hole the language isn't there and perhaps the better thing to do would be to amend the rule to get some language with respect to why the witness left in the first place or became unavailable i understand your honour's point i think that the language actually is there and it all has to do with at what point we're evaluating the efforts that the government has taken if we were to go back for instance your honor to the first trial here the question would have been what had the government done at the point of the first trial in order to procure the witnesses attendance well the government had slapped the witness with the material witness detainer to make sure that the witness didn't leak fast forward to the second trial we have the same issues on the table we have the same witnesses the government wants to call what has it done to procure the witnesses attendance at that trial well it has undone what it did at the initial trial which was to detain him and without consultation with the district court without consultation with the defense without doing so much as subpoenaing the witnesses or taking any of several much less restrictive or much less drastic measures then releasing him and letting him go home the government has simply let him well and so i don't think that there's an absence of language in the rule i think that the question is is temporal and here when we have steps that the government took originally to secure the witnesses presence we have to consider those efforts as well as what it did from that point up until the retrial and so it's it's considering everything that the government did as part of its efforts to procure the witnesses he mentioned that had the witness been detained much longer particular given his a less medical condition that he might have had a fifth amendment claim how would you as defense counsel balance the fifth amendment in the first of a fifth amendment i mean of a material witness such as this gentleman versus the sixth amendment claims that your client has harsh how should we waive that well your honor i think that there are a couple of answers to that question one of them is one that the district court addressed at least implicitly which was if this is the concern that the government had  there are ways that we can deal with it that are much less restrictive than what the government did first and foremost let's have the retrial in a very speedy fashion let's at least talk about how quickly we should have the retrial so that this witness doesn't have to be detained any longer than necessary moreover let's talk about other less restrictive alternatives let's get this person back out into the community let's put him with an ankle bracelet let's let him live freely in los angeles like he did for twenty years but let's just not give him his passport back so that he can't leave now we've taken care of the witnesses rights not to be detained unfairly but we haven't created this risk that he's not going to be absent there's also case law your honor for the proposition that  when a witness is critical to the government's case or when there's real questions about his credibility such that the defendant has a very strong sixth amendment right to confront him then the appropriate thing to do may be to detain him  believe your honor that that is the pin you could see here is case i've certainly cited it in my brief and that is exactly what it says when there is a serious risk that justice will be compromised because the defendant won't have the opportunity to cross examine this witness at trial in front of the jury it may actually be appropriate to detain him and i think that that is something that has perhaps been lost in the government's presentation is that there is a constitutional dimension to what is going on here the government's position is as long as we have acted in good faith in our motives are pure the consequences of our unreasonable actions must be borne by the defendant the government says today well actually we're the ones we have the government of the ones who suffered as a result of the removal of this witness because we needed him but the government doesn't have the sixth amendment right to confront witnesses against that is that there is the defendant's right and so when the government says as long as we act in good faith it's all ok it's forcing the defendant to bear the brunt of its unreasonable decision to deport somebody and because there is a sixth amendment right which includes not only the right to confront the person in the sense of cross examining him but also to have a jury examine his demeanor and his credibility and to make judgments about whether he's to be believed that's not a right that can be as likely disregarded as i would submit the government is suggesting to you here today interest in the subject like a national defenders organization or association of prosecutors are we certain what we really don't know what position might be the sixth amendment rights of the defendant versus the rights of the material witness to get out get out of there so i just wonder are you what's your view on whether we should call for amica street we have had cases that i've been where after a challenging issue was presented reopen the briefing to permit advocates free speech to be filed obviously your honor if the court believes that in briefing would be of assistance to it i'm not about to say that that's inappropriate i do think i need to point out to the court that mr you do remains in custody he was prepared to go to trial this all arose on the eve of the retrial and so what we did immediately upon receiving notice of the government's appeal  because we knew he was going to go to israel and it wouldn't have had any power at that point where the government is really saying is once mr reza yano was in israel we wouldn't have the power to enforce his failure to comply with that subpoena so long as he says the government should have served this material witness with a warrant even with the excuse me with the subpoena even though they knew he was going to leave the country because it would have had legal effect and when you're talking about someone like mr reza ya know who has strong ties to the united states may one day want to return there might be something to having a subpoena issued to him such that he has a legal obligation to return to the united states to honor it and the knowledge that if he doesn't do so there could be contempt charges waiting for him back home as it is having taken no such steps there are really no consequences to mr reza jaan those decision not to come back to the country and we're in a situation where we are now where by virtue of the government's failure to an availability so much the purpose of the so i would suggest to your honor that that is the language that is their address thing the only language in the statute that talks about why when this may have become available and that pending any change in the statute that is the language that should estimony should come and the second point i'd like to address  non binding authorities which are the district court case of wilson in the first case of man which when examined on their facts actually support the conclusion they're resting on his testimony should be admitted in may and that was bad faith misconduct which we certainly don't h exemplify that i'd offer that the thought experiment if there had been no trial in this case if we were still pending the first trial and resonate as attorney had come to us and said look my client has been in custody for five months on this warrant his health is deteriorating i'm moving to preserve his testimony to a deposition and then he will be released the statute provides for that that would have occurred and once the testimony had been so preserved it would have been mandated by the material witness warrant statute that we rel  finally a few quick points the defense the suggested that we could have pushed for the retrial to occur in a speedy fashion as possible it was very clear following the mistrial and i can point to record citations for th before any retrial and we certainly didn't know how long that was going to take the defense also as as we knew from communications and is discussed at the june seventh hearing wanted to bring at least one witness into the country from mexico for a retrial and that w had her own immigration problems that would have to be resolved both sides want to pursue plea negotiations one of the defense counsels had a supreme court argument coming up there were numerous reasons that we had no reason to think that any retrial would occur in the near future and in the retrial date  would be something of a moving target the defense has suggested here in their brief that mr resting on a could have been released into the community as he had been when he had lived for twenty years in l a before his conviction that was not possible given the existence of the deportation order as as discussed in stage once there is a deportation order in place that individual has to be deported by the department of homeland security forthwith unless they're being maintained in custody material witnesses and finally i would just submit that to the extent the defense has raised confrontation clause concerns those are certainly not concerns the government would dismiss lightly and would the government would not have taken the actions of didn't this case had the confrontation right not been fully vindicated by full in court cross examination during the initial trial and as ohio the roberts states prior cross examine trial testimony is generally a munich from confrontation clause attack and that's why reversed thank you by the way you mentioned roberts yes would you say it's also consistent with crawford yes absolutely post cross examine trial testimony has been routinely admitted throughout the country in the wake of crawford