and at this time of year for nando's versus united states fernandez at trial on appeal or in his twenty two fifty five titian i'm here specifically with regard to the one issue on which the court below granted a certificate of appeal ability which is whether or not the jury could have convicted mr fernandez without knowing that he was going to have that there was going to be a gun present i think that that specific question is a little bit too limited because it's not simply wonder or not he knew there would be a gun present but when and this is the problem with the fact that rosemont was not taken into account even during the preparation for trial because nobody asked any witness when exactly did he know now the main witness patrick dartrey he knew when he was recruited had a gun and his cousin wanted him to have a gun for the for the killing well according to patrick dard talk about not trial i'm talking about the evidence before the jury and i'm talking about it to church according to patrick dart he did not tell his cousin that day that he recruited him which was the day before the killing he said i told him there was a problem in the family that i wasn't going to let it out the gun who brought the gun in the gun and so my client tonight is that he had a gun or did any of the above charge but the fact is this there was a lot of contradictory testimony in this case and that is the jurors are the the judges of the facts judge but the questions that were not asked were important and i would like to look at this judge in terms of the jury's requests for read back because the jurors asked for the read backs of the testimonies of patrick garge and allen dart patcher dart said that he was the original shooter  that he shot one guy that his gun jammed on the second and he ran out the door and he did not know who the second shooter had actually been he said it could have been ray yes because reyes was in the building now patrick ar testimony and he also said that luis from vero was the try for now they also asked for the read back at the same time of the testimony of alan dart who claim my client said that he was the original shooter that he had had his gun  and he was the one who ran out the door and not lose for vera was not the driver readiest was the driver i submit your honour's that the jurors did not consider the testimony of those two to be proof beyond a reasonable doubt and to be quite frank neither did the government because the government dropped murder and gun charges against rivera the alleged driver because the testimony about him was contradicted by patrick  contradictory the government dropped those charges because there was no proof beyond a reasonable doubt based on alan george and patrick carter's testimony so what does that leave us with you bill mendez mendez and i'm always a stone did when a jailhouse informant especially one who had been cooperating before and was cooperating after is believed to have been confessed to by a man who doesn't tell his wife his priest or his best friend but does came in and he testified that my client told him mr mr fernandez told him that he was in jail because he agreed to participate with his cousin and he was told to bring a weapon now what are the questions that warren asked was the weapon specific did you bring a weapon when did you find out that there was going to be a gun on the scene because patrick dart says he didn't tell them until the next day that there was going to requires is that the government prove that the defendant's knowledge of a firearm was advance knowledge and time to make a legal relevant legal and moral choice when an accomplice does not know anything of a gun until it appears at the scene or a are at some late point where he has no realistic opportunity to withdraw then as an unarmed accomplice he cannot and in the back now this is charged on an aiding and abetting theory as well as direct evidence and the direct evidence is missing because nobody actually saw him pull the trigger nobody did rayos was on the scene only that your client assembled the weapon the gun in the car on the way to the right and this is patrick that patrick guard was not believed patrick george and alland arj were not believed in the question as you know the what could the how do i know that because the jurors asked for mendez his testimony after the the internally contradictory testimonies of the two barged brothers that was so contradictory that the government dropped charges against the alleged driver ok but they got mendez please stop yes sir we can ask you a  testimonies and they contradicted one another and they wanted more that's why they asked for more and what that that's an incredible leap of faith on your part conclusion as to whether why jurors asked or read back i mean i understand that you're an advocate but you're asking us to say that the jury had a credibility problem because they asked for read backs but because they asked for additional read backs the government is claiming that patrick  they testified about this murder for hire that they were going to do they testified that they all knew that they were bringing in patrick dard and that three manassas three or four days beforehand i found out it was going to be a cousin well there is a cousin his name is joe agra mito and that somebody a cousin that mr george testified he committed murders for hire with if there was a cousin known three or four days beforehand it was  joe fernandez because according to dodge he told patrick the night before i mean he told my client the night before that there was a problem that he needed to address it that he did not tell him that day the day before that there was going to be a murder he did not tell him the day before it was a few minutes remember you could use it now i'm sorry three minutes rebuttal you could use it now i would like to use it for a bottle ok thank  you morning may please the court my name is russell capone i represent the united states on this appeal and i was one of the assistants who represented the united states a trial appellant challenge to the jury instruction on aiding and abetting is procedurally defaulted because he did not raise it on his first appeal he cannot deny that would have required a different structure yes rosemond would have required a different instruction in fact the second circuit law before prejudice and then i'll start with prejudice because a proper charge a proper charge under roseman could not have changed the outcome of this trial and he needs to show under the relevant law that the erroneous charge work to his actual and substantial disadvantage or so infected the entire trial that the resulting conviction violates due process that's from brady all of the evidence at this trial suggested that joe that he was the first shooter and his gun jammed and then joe fernandez yes exactly alan who years later there was not there and received a confession from joe fernandez as he recalled it to confession was that joe fernandez and the other guy did both say that they both fired shots your honor so whether one went first or one second i said is actually not you you know if you were you might be in a quandary about which one of the brothers to believe which one of the brothers to believe but under under either brother iran or under the bus when either brother joe fernandez was there joe fernandez fired shots joe fernandez was hired to commit a murder for hire and their choice doesn't matter in terms of his of this murder for hire that in which he solicited joe fernandez to participate and in fact there are two counts here there's there's a murder for hire conspiracy and there's a nine twenty four j count and we're here only on the one twenty four j count but he was convicted of a murder for hire conspiracy meaning that the jury found that joe fernandez agreed in advance that he knew that he would participating in what would be a murder for hire there was only one witness  adversary claims that that doesn't that wouldn't suffice because he didn't specifically say gun but it certainly is not inconsistent after told him to bring a weapon and this was the jailhouse snitch to use the vernacular correct yes we spent five days with it after many years yes yes ron so i share counsel's concern with the quality of that kind of testimony i don't deny it's there in the record yes you are you know it does b the notion that the jury convicted possibly solely based on that testimony it was he was the type that was the important thing he was the one that said bring a gun bring a weapon bring a weapon not not bring a gun every other witness who had knowledge of this testified to gun mendez said weapon but the issue here isn't injuring must have believed patrick garge because they could not have convicted joe fernandez on count one murder for hire without patrick charges testimony you bill mendez did not testify that did not have any knowledge that this crime was even a murder for hire to begin with the relevant testimony from mendez that we're talking about is two  sentences of his testimony that really the critical two sentences where he said joe fernandez confessed to me that he participated in something with patrick and he was told to bring a weapon he had no idea that this was a murder for hire so the dream must have believe patrick charger in order to convict the defendant and if they believed patrick garge his testimony was that joe fernandez brought a gun to this murder for hire and it strains the issue at this trial was not did the second shooter was the second shooter a shooter did the second shooter know he would be a shooter the issue was a whodunit issue was joe fernandez in fact a second shooter this was not an issue this was not a little gated issue and in fact it defies common sense to think that joe fernandez participated in a murder for hire agreed to participate in a murder for hire which the jury found that he did drove to the scene of the murder for hire with the other participants went into the building waited for the victims standard here the court has to find that it's far more than a mere possibility that the outcome would have been different but that this error worked to a substantial disadvantage to joe fernande a move on quickly to the to the cause issue i think for the same reason and the defending appellant cannot show cause here he's relying on ineffective assistance to try to show cause but it's precisely because this issue could not possibly have affected the trial and that it was not unreasonable for his appellate counsel to not raise it on appeal moreover as i said this issue only goes to count to count one the murder for hire conspiracy carried with it  mandatory life sentence and so even if if palin is successful on this issue he still facing a mandatory life sentence it's not unreasonable in that context for his appellate counsel not to have focused on this issue which would have had no print  yes so i have a hard time understanding how a majority would think of the charge being inadequate in terms of not knowing that a gun would be used under nine when you know the trial and if the court has no further questions i'll rest and i pref testified that he ordered a murder for hire that he conspired with quail are in radios and that they brought in patrick dortch that's enough to stablish the murder for dardus testimony was superfluous to establishing the fact of the conspiracy itself the conspiracy itself did not require the testimony of either darn brother what about it in the government's case would  fact joe fernandez defense his claim is he wasn't there yes he absolutely does i'm god which would why would why would that his defense wasn't while i was there but i didn't know the gun was going no touch but it's not have to forego every reasonable and helpful instruction simply because it's not going to fit in with your specific thing that he didn't do it we all i'm sorry measure the effect of this is a culture we're supposed to understand whether a lawyer operating under the stairs the press would have appreciated the fact that he should have racist friends and ask for specific charges you're here on a hate as to the inappropriateness of the charge not anything else well you real so tell me how a lawyer would have known given that the government's case was and directed their prove to that he brought a gun and that the defense was i wasn't there why one why a lawyer would know to ask for rosemont type charge because i mean lawyer was troll experience would argue to a jury resave he wasn't there and he didn't do it but let's look at what the government's proof is because it's not sufficient under the law so even if you believe this particular testimony is long gone this is about the this is about a jury charge and ineffective assistance right also excusing the failure contest the jury charge at the time trial but i think it was a complete fact that he didn't know about rosemont and he didn't know about the higher quality of instruction required by the second circuit judge i mean it's not it's not funny there is a man on trial a man i after thirty two years of for of federal criminal defense i have some i actually believe is totally innocent and that is stressful ok this is a situation judge in which you say yes we deny he was there we deny he had anything to do with that if it was a cousin it was his cousin joe i beat out whom the defendants have testified participated in murders for hire with them before it wasn't him but even if you want to listen to what these witnesses have to say it's still not sufficient under the law any boyer worth his salt or her salt will say yes he wasn't there he didn't do it but their case doesn't rise to the level and it's not about the sufficiency of the case judge it's about the sufficiency of the representation any good trial lawyer or any decent trial lawyer is going to say he didn't do it but let's look at what their proof is because their proof doesn't do it because the law requires more and