we have three cases on today's docket a good will for all argument of the first is called number sixteen dash five zero six four three united states of america versus richard after today jury trial in which mr martinez was not permitted to testify and as a fence something i'll come back to in a moment he was acquitted of the conspiracy charge but he was convicted of the possession charge despite having no criminal history mr martinez received a nearly twenty year sentence two hundred thirty five months the sole factor that determined this first time offenders extremely lengthy sentence were clear mathematical miscalculations concerning the quantity of methamphetamine was held responsible for and i want to get right into that issue first it's important to point out initially that the government made a conscious decision in this case not to put in any evidence at trial concerning the quantities of methamphetamine for sentencing purposes the government only put in and they were very clear about this to the district court they were only going to put in what they needed to prove the conviction to get the conviction the government only had to show that there was a liquid solution in mr martinez's gas tank that collectively weighed over five hundred grams and that contained some detectable amount of methamphetamine the government did not have to show anything about the actual amount of pure methamphetamine they didn't have to show that the mixture was in any way usable in the form in which mr martinez possessed it now as your owners know for sentencing purposes drug quantity calculations work very differently to be held accountable for an amount of a controlled substance at sentencing you either use the amount of pure controlled substance or you can use a mixture containing a detectable amount but you have to show that the mixture is usable in the form in which the defendant possessed it now as i mentioned  government was very clear with the district court that it was not definition of you wolf so that's reflected in the sense in guidelines but basically it has to be something that can be used in the form in which i pure controlled substance route and because the government both only put in evidence at trial concerning drug quantities for conviction purposes but then its head and saying i didn't put in any additional evidence they relied entirely on that trial record they had made the evidence concerning pure methamphetamine quantities was extremely threadbare i think everyone's agreed on that so what was actually in the record the testimony on this issue came from katherine sermon who is a city of boston police department chemist she testified that the liquid solution and i really want to focus on the liquid solution because that is what drove mr martinez through the stratosphere of the drug tables  the liquid solution can in the liquid that she could not identify in any way in a contained some amount of methamphetamine she gave us two other pieces of information and those are in her report which is tab eight of your record  some amount of the solid substance and we know we have arguments in our breeze about why the calculations with respect to the solid substance also were logically mathematically flawed but even if you did include all of that even if you included all of that is pure methamphetamine mr martinez would have only been at level thirty four and that would have been a sentencing range of between one hundred fifty one to one hundred eighty eight months he got two hundred thirty five now if you took the solid substance as a mixture containing a detectable amount of methamphetamine he would have been a defense level eighty and he would have gotten between ninety seven and one twenty one hundred twenty one months that would have been his rage of course what happened in this case was the probation officer combined the two numbers that were included in the service record in the record makes clear that those two numbers could not be combined in the way she did specifically the two numbers in her report where the weight of the solution budget so you cannot use a weight in a concentration to derive the amount of the substance in the solution that's just basic middle school chemistry basic mathematics so that the air was clear in this case and we medical school chemistry go high school oh something so middle schools maybe i want to turn to mr martinez is a challenge to his convictions there's no question under rocky arkansas all that the defendant has a constitutional right to testify in his own defense the question in this case is whether that right when the district court refused to reopen the evidence to permit mr walker mr martinez to testify in i want to focus in on the two factors and the two areas where the government has tried to create some daylight between this case and walker with the first has to do with the third walker factor which is the effect of granting the motion to  that disputed you know i don't think it's disputed that the government released its rebuttal witnesses seventy five minutes earlier so just to sort of set the table on this what's your best case where it's undisputed that government witnesses were released law yet but government witnesses are released and a circuit court reverses the trial court's decision not to reopen can you think of one so that the closest case i have on that would be the large would be walkers the discussion of larson and i can want courage discussion of larson yes so if you look at page eleven eighty of judge gar woods walker opinion this is where he discusses well the fact that although the government had already put on its rebuttal witnesses and walker by the time the defendant wanted to reopen the evidence that the government basically said they were going to put on  if if walker testified and they said ok so there's there's no prejudice to the government in this case and then they said just like in larsson that wrote specifically your honor again this this fact parallels the situation in larson in which the court stated that quote so far as it could ascertain from the record the prosecution would have no difficulty in assembling its witnesses in rebuttal to the newly offered testimony in larson there was no question that when the defense moved to reopen the government's rebuttal witnesses were not in the courtroom but they were in the metro area and the court in larsen found that that did not create prejudice because there is nothing to suggest that the government couldn't obtain these witnesses to come testify rebuttal to the defendant's testimony and that is the passage that is the section of larson that walker cites when it says just like in larsson there's no prejudice to the government here i think it's also important to note that the government here when it first asked by the district judge what's your view said this guy's hearing the system around that's correct and in good order in looking at the walker factors in the effect prong are we allowed to look at the whole record as to whether or not this was jerking the system around well is it would that be something we would be able to look at i don't think you would look after the motion to reopen was denied you know before whenever he done in front of the district court i think that yes the reason if you say yes i looked at the detention hearing and i sort of remarkably that this defendant is told by the district court you lied to me it's as clear as your nose in your face your word means nothing to me so that that caused concern to me that this defendant was very much gaming the system at various points well maybe that's when he said well the marshals wouldn't let me get a phone call out and then there was a hearing on the marshals came in and the defendant made it ok that was a big lie in the district makes that finding yes it relevant to this man sort of jerking the system around you know the concern would be here he gets to hear the will twenty nine discussion and the rule going forward the problem would be defendant hears the gov the court say you know i'm going to deny it because just it's close but on this issue and then defense as well now i want to testify i can address that issue so so the so make sure i understand what you're saying you think the fact that walker heard start martinez heard the court denied a motion for acquittal is i'm saying fourth factor no explanation ever we have to come up with some will that doesn't allow a defendant to just say well now of her the the court's concern i can address that i want to win that will twenty nine motion reopen i testify now all when we can ever will that just allows him to change his mind based on what he hears it will twenty nine so here you've got no explanation ever idea you're going to lose if you do it but if that right is infringed you get a new trial there is a little harmless error of the a whatsoever and i would say that the right to testify do not have to you do not have an absolute right  to do damiana doll out in exercising that right unquestionably now you're not going to travel on water and you can't force him to say you can't defend himself if you have a whole procedure in process for doing that the very elaborate procedures out of ten that process of reflective considered judgment you can't just dolly in and out well agree but you know there is abuse of discretion standard and we do have  is him offering and you've already been asked that question but the only reason he offers for his motion to reopen so that he could testify is that he changed his mind yes how could talking about is he trying to game the system is there evidence of unfair advantage i mean the walker court was very unimpressed with walker's excuse in that case but they found there's no unfair advantage here even though the government's rebuttal witnesses are that already testified in the in some of the cases cited by the government where the defendant has moved to reopen like at closing arguments or at a much later stage those courts have focused on the lack of a reason and that that makes sense because if you move to reopen after closing arguments there is some sort of basic there's a it suggests that you are trying to game the system in seoul twenty nine arguments give you a great insi it's the same situation just moving ahead a little bit right if the court says and they often do it this is a really close case here's why i think there's just not you wouldn't allow you wouldn't want defense to be able say well now i've changed my mind i can answer that just defendant heard both those moments but there's i mean there's no substantive discussion in this record about that would be the rule you don't have to give an explanation if there's no substantive discussion i mean i think you're looking to bird yet they put a heavy amount of emphasis on the fourth factor don't think well they do and it's for the reason i explained where there's you know there was a it's much later in peterson i mean it was like you know the court said the guy was going to throw his trial proceed may please the court my name is jennifer free and i represent the united states after the close of evidence the defendant's right to testify is subject to the discretion of the the close of evidence is that bright line before the close of evidence the right to testify is unassailable but it defended waits until after the close of evidence when it is within the tr court's discretion and in the instant case mr martinez waited he gave no proffer no explanation for what he wanted to testify about and as has already been pointed out he gave no excuse and his own attorney said i have advised him that it would be bad to testify but throughout this man's procedure starting from the initial appearance he and his attorney were clashing special hearings about whether  no point you counsel and he in the room in that initial appearance and from the magistrate he says four or five times i have no prior record i got this garden option i didn't know didn't know so he has the single narrative that he keeps interrupting people to  and he has no prior record and then you have walker that says you know when a defendant wants to testify that's different reopen for a little less sundry things that's a pain in the neck it takes time but the defendant's own words should be given a priority w this case is distinguishable from walker in many ways and i also want to get to your first part of a question about his his what he wanted to tell the court but with regard to walker i think it's important to note that in defendant close up an argument the defense to get on the stand and his attorney and i remember this because it stands out said your honor i was caught with my pants down i didn't think the government was going to finish this early so there's all this in the record the floor of the evidence even closes and then after the close of evidence walker gives an excuse he says i was wasn't emotionally ready and i was in the stands out i was a documentarian lee ready i had not gone over all the documents that i needed to go over in time to testify that is a very clear excuse and here we have nothing what happened in connection with his decision to testify or not and i'm talking about before the close of mr martinez he was given the government the government rested they had the rules twenty nine motion then would you do you have any witnesses course the jury is still out and then judge parks gave a twenty minute re counsel because he didn't know there was some strife there to talk to him and certainly the record shows he didn't ask for more time and then as often happens defense counsel came in said the defense rests without calling any witnesses so there's nothing on the record like in walker where there was this just to talk about his being emotional that's on the record you know that no not for martinez there's nothing on the record about his emotion with regard to court and then also had several attorney status hearings and he repeatedly sort of put this narrative out there that i just drove this trot which presumes that someone else left five million dollars worth of methamphetamine very timely this is just within two hours it was timely and it is strongest founder walker itself a parent of defendants going to get on a case like this it's obvious everyone knows when you can say i didn't know the drugs were in the car right so then we were looking at the two final factors and when i looked at what judge sparks said he doesn't really articulate either he first says well we've had a charge conference and that wouldn't be a basis alone right  and then he said as the jury heard the evidence is over well that would always be true so the only other reason he gives to me would be one that would be reversible error which is he says i don't think this would help him but neither a defense attorney nor court can tell a defendant you can't testify because we've decided it doesn't help you correct certainly so if the district judge had said i'm going to deny your motion to testify reopen and testify because i am let's see if the government says all right let me let me get arraigned so that the facts laid out and in a different way your honor ok and the court has the trick to scratch and and there's nothing in any of these cases that says the court has to go through each factor and make a determination as to each factor you know to describe the three factors he went through the door he went through that the judge sparks went through did i describe the three he went through it's a very quick little hit i described to three factors he said first charge conference over he said second jury heard evidence is over and the only other thing i remember him saying in connection with this ruling is this wouldn't benefit you in my wrong  counsel for counsel's opinion and the government also bought into the record the fact that the witnesses had been released that you'd already aired the objection before the government says that he never reiterates that as a reason instead what he says is this wouldn't benefit you because as the court noted in byrd and the eleventh circuit said it could not foresee how a district court could abuse its discretion by refusing to reopen the evidence to allow defendant to testify where the defendant has given no valid reason i appreciate that sequence my concern here is that defense counsel often understandably want to protect their client from massive impeachment that had been an issue in this case earlier on early and judges may similarly think oh don't do yourself in but i'm trying to confirm that the government agrees that if either of those institutional actors defense counsel or the court refuses to allow someone to testify on that basis alone that would be revers error you know i think a black and white it's i can imagine a situation where to find it was saying here's what i want to say here's my explanation here's the character of want to say here's my excuse and then a district court saying well you're wrong i think you do about job by saying before the close of evidence it's unassailable i don't i don't want this court to think in any way that the government wants to prohibit defendants from exercising their rights so please if anything what's unusual about this case is that in the middle of closing the guy interject again and he says why can't i talk i've got no criminal record it isn't interesting because but given when you look at the detention hearing when you look at this with mr martinez he interjected he this was his style he actually got in front of that the jury the fact that he didn't have a criminal record so i think it was strategic and while i don't like the term yanking the system around that's very colloquial he certainly was obfuscating he certainly was delayed and let's not forget that he did admit to being a mule he did say they used me as a mule in a previous proceeding which the prosecutor didn't use in this case in chief arguably out of a nicety for defense counsel so this was someone who frequently made outbursts but not always to his own benefit and certainly i'm not sure i think some of this was lost upon his counsel but in this type of char distribute the government didn't have to prove that he knew what particular drug or the particular amount we only had to say if you were writing this decision no abuse of discretion in spite of walker because fourth factor is particularly salient salient i also think the fact that he did the character of the evidence character of the evidence the fact that he gave no proffer at trial and i think that's where this impeachment comes in when you're looking at character of the evidence that's pretty broad term and then also the fact that the government had released its rebuttal witnesses and even though it was just an hour and twenty one minutes there was a rule twenty nine conference and in the peterson case it was only  was certainly not as clear here you know there's this idea that our witnesses are on a leash we can just roll pull them back in but these words federal officers they were locals they were on duty they were spread across the county scenarios it's reasonable to infer that they're working they're getting paid by the tax   support justice fairness in order that that force factor offering no excuse the prejudice to the government and the fact that no proffer have been given just that martinez cannot get over those facts he cannot get over those records show anything about the particular witnesses that were let go they were going to go it does not but it was a this was a short trial i mean it was it was a day and then fourteen pages of transcripts testimony on the second day so so so it was certainly like walker walker had cooperated or is that had witnesses who were given immunity it had documents to go over this was a traffic stop i don't think there was a lot that came up at trial that wasn't in the discovery packet so to the extent we're comparing walker and martinez they're very different types of cases and mark martinez and the play was filed three months before he had all night to consider the very very vast majority of testimony and he had twenty minutes of this counsel never gave an excuse why he waited what happens in these he's still free to bring up in twenty two fifty five that would like to talk briefly about the sentencing issues and here plane error review is a correct and appropriate standard because it is so well established that a party must raise the claim of error with the district court in such a manner so that the district court may correct itself and thus obviate the need for review and what we have here is no discussion about volume versus weight the first time we hear about volume is that the appellant opening brief the district court was never told the probation officer was never told the prosecutor was never told hey why are you talking about volume and a simple calling the chemist to the stand for three questions did you use weight or volume or use weight did you when you said concentration at testimony did you mean concentration or purity i mean purity of sheer quantity of it i can put that much the is because it's on plain air because it wasn't preserved and we don't have that great of a record we put that in our brief there's not much on the record here because it wasn't put in front of the district court so we have a lab report and there was a trial there wasn't there was not a challenge on this idea that he had five million dollars with a methamphetamine in his in his tank that was not charged that was not and that was not challenge at trial the value which goes directly with the quantity and  it was preserved and the way we know it was preserves if you look at the pre sentencing report the probation officer specifically noted that the plaintiffs himself to be the defendant himself actually made pro se objections objecting to the notion that there was supposedly such a high amount of methamphetamine and he knew it was not correct and if you look in the in the present report the probation officer looked at those objections and specifically noted notion that somehow we're going to get twenty two kilograms of methamphetamine out of someone's gas tank is laughable and if you look at the government really hasn't done anything to suggest why these numbers were correct the numbers are in the report but the reality is the numbers in the expert report are not what was used to create the sentence the numbers that were used to find this twenty two kilograms were a calculation done by the probation officer which is obviously mathematically incorrect there is no possible way with the numbers that were in the expert report that you could come up with and half that amount in a gas time your honor if you look you know it's very difficult to tell i think exactly what cou happen one thing that gives you sort of a reality check on this is if you look at some of you tell me that's impossible and you've got to have some idea of what would be possible so when we look at what typically happens in these sort of situations the volume of the solution to the actual methamphetamine tends to be maybe one hundred to one or a thousand to one so what here we have a situation where the government is claiming it's two to one half of the solution is pure meth and petted that is impossible i don't believe it's ridiculous and just thinking about what typically happens you can see that these numbers don't make any sense but when you look at this vehicle it was a truck honor i don't remember the precise model of the truck it was an older model i think you but whether what plane error case with there be where we conclude on appeal that a trial expert exhibit is plainly an obviously an error when the defense counsel didn't get it excluded the government put it in the district court had it in front of them how do we know you're less likely say let me finish my question how do we give me a case where a trial exhibit expert exhibit identifies an amount and then on appeal the court of appeal says that plane error is to drug him out so your honor i don't have a case precisely like that i don't think this is that case so this is a case where we had an expert who rendered a report the probation officer then took that report and made additional calculations the expert never made calculations that are inconsistent with what the experts said maybe could have been done with those numbers at trial and came up with a number all in the zone and what's your best play in error case and go to cases that we have cited to talk about the fact that when you have a mathematical error that you cannot take a mathematical error and simply use that as a basis for a sentence and in those situations that is different than a pla and if a little bit of care had been taken and this mathematical error been corrected because of the plague they defended your did object and the officer the probation officer noted the fact that the objection was made but they never corrected it and a disorder of is goes with the whole what we've been talking about with respect to the other issues in this case the defendant in this case was constantly pointing out the errors and the problems and the issues with this case and trying to get his story out and he was never allowed to do that for a variety of reasons a very short trial he was it's understandable why someone in this situation would be going back and forth trying to figure out i mean i've never been in the justice system before i'm trying to understand the situation  telling me not to testify i believe that i have evidence that will prevent me from going to jail for a very very long time he's wrestling with these issues the case finishes early and he's trying to get his attorney to let him testify so he can tell his going to put the twenty something kilos and copper so i guess you could have a truck that's got that large of a time but this is a pickup truck it wasn't a truck with an excessively large sized gas tank the amount of material that they cite and we know that it didn't have an excessively large gas tank and we know that it didn't have to gas tax that's correct there was only the only evidence if you know there are a lot of pickup trucks that have to gas tanks you know that that is correct i know that's possible but there's no evidence here of two tanks and the government has made any claim that there wasn't is nothing and you may not get that burn if you so the evidence is that the way this is supposed to work and i confess i don't have much gas and the other solution are different weight so the gas will rise to the top and the other solution will be on the bottom so you can actually if you make a situation where you can actually siphon the gas from the top of the tank then it will run and the