the court curt hermanson on behalf of mr andrews your honour's in this case in two thousand and twelve the district court granted mr andrews a motion for a new sentencing correct she was a psychologist who prepared a report for sentencing and then once the judge real saw the report he made several comments about how that would have been highly relevant and then reason that her testimony probably would have resulted in an acquittal but then the district court of used his discretion because it's a rational thing on the one hand granting new government reports one is vote of those reports conflict with doctor cut down on this report and so the government argues that well because that's changed circumstances there's now a conflict and so and they speculate that well maybe then he wouldn't grant a new trial but the fact is that funds should have been given for her to then respond to those reports and funds were never granted she should have been given the opportunity from the defendant you know setting forth his financial circumstances yet in this case to israel did not require a financial affidavit judge will appoint a federal public defender and he appointed the federal public defender based on the facts and circumstances known  federal public defender when in this case yes in this case when for so there was the there was the first trial and then clearly demonstrates what and then he he like he terminated the federal public defender correct correct and he hired retained counsel for the second trial at a greatly reduced rate not that this make any difference whether greatly reduced wh reduce her weight like they're trying to reduce his rate i don't think there's any sign of that your honor but if the judge all knew that he had he had a forty thousand dollars student loans he his he knew what his income attorney after the public defender was appointed he he would cane private counsel that doesn't mean you can't have funds for an expert right i forty eight thousand dollars student loans that didn't go away he owed two hundred dollars on his credit card he and his wife and we made two thousand five hundred twenty five dollars and i mean their monthly expenses were two thousand five hundred eighty five dollars he exhausted his financial resources hiring a private attorney at a quote significantly reduced rate so this isn't like so the only thing the government cites for this proposition that you have to follow of a finance offer david which there is no role requiring that the court just needs to make a finding that you are indigent which the court made by by appointing a federal public defender and the fact that to me we usually look at some sort of some sort of evidentiary record you have to experts fifteen hours of unspecified trial preparation yeah real made of just appointed the public defender's office or the i'm sorry but do you think real judge real simply appointed the public defender's office without making some sort of assessment that mr andrews couldn't hire counsel i can only assume he did but there is nothing in it in the record on that point but the fact is the mr court appointed the public defender in two thousand and twelve this application for c j fans was made two years later by a private attorney in two thousand and fourteen in the interim the defendant had fired his publicly appointed lawyer and retained you counsel really why he refused the request right but he did say it in his order that no good cause was shown does that mean that it's not because he would not qualify financially certainly a good cause to go to the what the merits appeal the court referred to you the quote unquote suppose it ended in status of the defendant a clearly this court had doubts about the defendant's indigent status because after the court had appointed the public defender the defendant promptly fired that public defender hire new counsel and then only then asked for funds claiming indigence and yet before the court was no evidence other than its current financial condition and certainly no evidence properly attested to by someone with foundation o showing of why the defendant needed the funds especially especially given that the expert reports contained nothing relevant to the issue of intent or really any of the other issues in the case under this court's ruling upholding and rodriguez laura that if then it was required would be helpful to the defense that your position there my position is looking at what's actually in the records there is nothing in there to suggest that the defendant was confused that was th was incapable of deceiving or cheating his former friend there is nothing in there about the defendant somehow being unable to distinguish between an authorized authorized credit card charges there's nothing in it in that report to suggest that the defendant was unable to distinguish between his motion wasn't there to grant it granted you tried absolutely there was a motion for a new trial brought the court granted that motion but the court's findings are obviously not binding on this court the government obviously disagrees with them and the only issue now before this court is whether the district court abuse it discretion when ruling in july twenty fourth seen on the application for new finds and well let me ask you at the second drug like what do you all report and produce the record at best isn't modeled on the issue of why defense counsel did not call the x for their war representations in the middle of trial including at the government's accepts one seventy three in which the defense lawyer is telling government states we couldn't if we wanted to call or there was no way we could have called her basically trying to preserve the appellate issue that the defense has now arguing today but at best your honour's that the record is modeled on that point i would argue the record actually shows his review on the competency hearing so that was reviewed by the court and was reviewed before july twenty fourth when this case was submitted that's what about the second one the second report was was before the court however that was after the application was filed in july that report was before the court so he suggests real wasn't aware of them but to tell you they made the c g real had not read that report contradicted by what defendant was saying to others including the probation office i mean just to take one example one of the premises of dr castilian as opinion was that the defendant had suffered this supposed brain tumor that had moved as a child and that created these cognitive deficits childhood a terrible home life that is directly the opposite of what the defendant told the probation office at a time when he had every incentive to be truthful and tell the probation officer just how difficult his childhood was so it wasn't just a battle of the experts a difference of opinion by the time the application to see application was filed it was shown to rest on a very shaky factual premise that was it by the defendant's own statements the other reason why the defendant can two to clean the court appointed psychiatrist and the fact that the expert opinions were contradicted by the defendant's own statements expert opinions would have made really little difference given the overwhelming evidence here of the defendant's intent that the defendant admitted that he knew what he had done was wrong that that piece of evidence in of itself refused any notion that the defendant was confused about what he was doing about whether he had authorization to do it and that was just one piece of exactly right thank you thank you garners in this case it was a bench trial both both trials were bench trials so we really have to i think it's important to focus on what judge real side and what judge real did he found mr andrews not guilty on count six to fourteen he stated that the government hadn't shown intent and so these are statements from the fact finder and the fact finder said that if that doctor customer wanted to report probably would have resulted in an acquittal so to then take an application from an attorney saying we need funds for that expert and to just hand right on it deny no gates to card shown is an abuse of discretion and for the government to today say oh you know why well first of all you know whether any attempt was made at the second trial to introduce that psychologist report with the government and in the government's excerpts of record i think it's one seventy going to appear pro bono and that did not happen so well what do you mean you just said there's no way she would have appeared except pro bono we don't know that but i mean if she had appeared provender than she would have testified a second trial i mean it's clear from the record that the attorney both in a sense a memorandum in his application to the court wanted her testimony her testimony was essential any rational attorney is going to present her testimony when the finder of fact is giving you the playbook and saying this is how you get and acquittal is with this report and in that the government's a fair point that there's contradictory reports but judge real already aware of the contradictions that were already in the probation report when he made his decision but here we are time thank you very much