about how we were going to go i think i'd like to give one of my ten minutes back over to mr schuster and i would take your nine you'll take a leaven and do the rebuttal he'll do their part of the rebuttal and as you know our questions may cases of this court has seen a dozen times before that is what is the evidence that this particular defendant had knowledge of object of  them constantly coming up are cases in which the defendant to be not guilty of the charge has to have thought that some other crime was being and and he's not guilty of the particular position because maybe you know th there's a reasonable doubt that he thought it was a different person here in the from the alter the theory not even necessarily one of an alternate criminal activity but a misuse of the computer perhaps to help the brother law that affects the jury convicted of aggravated misuse crime which is misuse for the purpose of furthering offense this kind of conspiracy was the jury given the alternate the aggravated as the same in a sufficiency analysis is indeed argument if we this is not a no evidence insufficiency case this is an insufficient evidence case and m part of your argument is that evidence that the federal rules of yes and the cases say that accomplice evidence alone can be sufficient that hearsay evidence alone and the sufficient that of conspirator testimony alone and the sufficient but the language in access the computer to learn information about the t j company a company and sham company that the government set up right and if he did that can't the j infer and since he had no no other reason really matter to look for the t j company can't the jury reasonably infer that he did that as part of this conspiracy to send all this cocaine to this t j company isn't that a reasonable inference now by the jury why not that's and that's exactly arks of course his brother tells me that jorge knew and then you couple that with or he's in fact doing things with the computer that indicate he's involved where syrian sufficiency argument there that's the you're saying that's not enough there's all that back to say he's involved with the rabbit exactly it's he's involved in misusing his government computer to respond to a request from his brother but  with and says the brother says it right so if you have those two things it's not as if you've got either in isolation you've got both things happening right right so so the question is  is so extreme that it's it's an unfair step or the evidence isn't enough because that inferential step is so extreme and i'm i'm trying to get from the why if you've got it what's your reasoning for that why is a why could it jury not see those things happening at the same time statements about involvement and actions that imply some involvement and say oh the involvement is he knows because they say he knows what's wrong with authority in which in very suspicious circumstances people are found not to have been shown beyond a reasonable doubt to have you know it was a drug deal including the guy who stays in the hotel room with the drug dealer who is shipman he is driving in the truck that he doesn't look into the back of across the country and the guy who is quote doing counter surveillance well around the parking yeah now then that line began with wexler well i think the the question is credibility and the jury but that decides credibility the jury can decide credibly the witnesses they see and hear but the how can the jury decide that you know you can't disregard the significance that the activity right i don't mean to be discussed this county at a very little because you've got another agent another customs officer gorman who's computer is found to have access that same information also is not the these things or not my brother's job is just is to see that the drugs get through he can see that that the ship that the container was never inspected and the evidence is on contradict he had no such authority it was no part of his job to do things of that kind so some of it's i raised a number of issues in my brief i'd like to focus on brady and sentencing yet specifically i believe that the prosecution mis advised the court about the facts concerning the court is to compare the statements made by the cross to sion who judge bassler with what we have filed as the your rebate letter which appears in the joint appendix pages one one one one two four if i may i would like to start with a statement made by the prosecution on december first specifically appears in a supplemental appendix of page one nine nine this is the prosecutor it's my view that the defense intitled to any prior statements made by the witness that the government can get its hands on and we will make every effort to do that that is that is that is   i was inviting the court's attention first to the government's representation on december first to give the court the chronology the case was started to try in in october you read they was in jail since two thousand the twenty fifth day of trial he shows up to testify in court and there had been almost no disclosure on december first two weeks before the government thinks they're going to get him there they tell the court that we're going to give you his statements we're going to try and get a statement and give it to you that's the context that i'm trying to point police he's still in colombia yet he's still in colombia and even though this case has been pending for four years they're going to get him up there right before the end of trial so then what happens after the government if i'm not making myself there are allow me to clarify originally the case was indicted just on the unlawful use of the computer charge single naming both defendants the government superseded an indictment and charge the drug house as well during this entire time you really is in jail in colombia he is  so mr herman represents mr your rebate december fourteenth supplemental appendix two nine four four the government comes before the court and says i've spoken with the defense lawyer for mr you rebate and he tells me that documents filed in opposition to extradition are essentially pro forma documents that can test the sufficiency of the evidence for the extradition as opposed to factual statements so it is relatively unlikely to contain any form of brady well when you can share joy dependents one one eight to one and through one to four if you see that you reba specifically talks about twenty promises made by the government then he's talking about the colombian government in conjunction with the united states government he's talking about being lied to and he's talking about the seat and a conspiracy and promises later all made by the prosecutor and dr cologne dr cologne is that the o j at that shape in bogota embassy working with the da working with the colombian prosecutors he's talking about twenty from this was made by the prosecutor dr cologne the prosecutor munoz and to me and i gave the testimony that was asked of me he doesn't say he was giving truthful testimony he's saying i'm giving the testimony based upon those promises that was ask me i'm referring to so you year you would have us read that to mean they told him what to say not was asked of me in the sense of i was asked questions but was asked of me in the sense of they fed me a script in the hands of a skilled cross examiner more skilled than me absolutely absolutely and if you go on to page six where he says in the second to last paragraph it is obvious that there is pressure not to tell the pressure not to reveal the truth us justice has two hundred years of history and experience in pressuring those who threaten to disclose its lies this is what cross examination is all about this is how someone in this case there's only two witnesses against one year old you got the double dealing for me james langridge toria who is setting up a separate drug deal under the nose of the v a with mr uribe a while he's going to do this mission supposedly for making a couple arguments one is sort of a jenks argument that we didn't get stuff as timely as we should have got it with respect to what we did get and then the separate brady argument that there was  for a second that is the piece that you were just quoting from what's your when did when did you said that the united states somehow knew about this it was in their possession because obviously brady is only a political to materialize their control right yes wrong ok so what's your evidence that this was within their control name withheld you are in the letter that we've submitted we think that letter and your rebate is description of the interview process his meetings with the colombian prosecutor the inquiry into the colombian prosecutor the four phone calls in two thousand and one from the u s attorney's office repeated interviews of him by the colombian people at the behest of the united states he also makes clear that based upon his two thousand and two interview with the agents who flew from the united states to meet with him a colombian they knew little about the case until he's both so in the context of that and then he talks about lies pressures and try promises i'm not trying to get a great yeah i'm not trying to get into the substance because you've quoted the substance i'm trying to understand as a matter of historical fact what there is and what you presented to the what you've presented that you believe shows that what was happening in colombia with colombian authorities it was information that should be attributed to or knowledge that should be attributed to the united states and what you tell me so far is they had you know there's a close intergovernmental relationship and there was communication and and that this is the basis on which to conclude that the united states government had some control over this information we're going to do all this for you the letter from you read they also talks about common cologne he has as all in a working in a joint relationship what the defense sought your honor was simply an evidentiary hearing to  to establish the factual basis for this joint venture with this particular individual your rebate and don't forget when i polish justice saying it like that please keep in mind your honor that when just passed there was ruling on this motion he was saying that the government made a good faith effort where the record reflects that the only effort that the government made was to ask for you rebase lawyer ask you rebase lawyer to provide the brady documents so the transmittal of those government exhibits for the most part have the facts of attorney defense attorney larry hermance when he came to the issue of the criminal history producing the criminal history of your rebate what occurred was the judge says look you got it the the the government counsel said well i'll get it from larry herman and the judge says no that's not good enough you should pick up the phone and call the prosecutor in colombia and the judge says well who's the prosecutor and the government says ms munoz they knew to call mr morris munoz and get the file the only excuse the government came up with is we got everything the defense attorney for the chief witness so we satisfied our obligation and secondly the file was in court the record reflects that the government said the file was in court but please this case was pending for four years the government had use have corsi the then the accusation which would be helpful for you to respond to maybe right off the bat is that you had access to it and chose not to exercise that access that's the implication that you're working hand in glove with the colombian authorities thing if you say you want something they get a phoria you didn't ask them for this because you didn't want to what's your response appear but you don't want to i mean you wanted him right you were trying to get him sure he was your whole case that's so absolutely we didn't know he was common there's not much of an excuse for not asking for stuff that you would know you'd need to turn over if you got him the way you wanted to get him so if we got him we knew we needed this or no i have to step back because i actually think the cases in which the government of the united states and the climbing government actually set up joint monitoring of defendants or planned out i den of five defendants together and set up an investigation the government well there it gets as it was they're also saying that when it came to getting stuff you wanted you asked the prosecutor when he came to get stuff they  wanted you you didn't bother to call the prosecution down there in colombia you got a hold of some other way or a defense lawyer but the implication being you know that you were really not trying and that you're saying that they had this letter let me see if i understand what you're saying that they had this letter that they had the defense that they had the basis for cross examination of yuri banging on promises and that's the one that's certain worth starting at four fifty six now where and where is the where is the language in that letter that you say is comparable to what m points to the quote it is obvious there is pressure not to reveal the truth unquote language on page one twenty three of the joint appendix in which he says had we had that it would have been a whole different ballgame  this letter was this was during the trial prior to cross examination i'm sorry i was not you were not but the point mr cole barker made which is that there is an insufficiency of evidence that when  access the computer ana's object or in an area over which he has no official duties that there's nothing to show i mean he sort of and mid or conceded that there's enough evidence for the lesser of the accessing computer charges i don't know i haven't looked up as i was surprised at that what the difference in penalty would be but he says there's nothing to show the jorge wasn't doing this oh only maybe one was lying maybe one was just trying to i mean one never testified he didn't do maybe he was just sort of upping the ante in a way what was there to show ok well that that that certainly goes to what he had at risk what's the what's the circle what's the in french will step that takes you to so he knew it was cocaine that one was asking him to help bring into the country more get this percentage you did presented to the jury by defense counsel in arguing that there was insufficient ask let me quote you something from the district court's opinion which baster said in addition you testimony that george i'm assuming he goes by george not or that george romero's was researching companies for his the actual  anticipate credibility punishment if we can you can you respond to the assertion assertion in the briefing that even if this was brady that your client is on tape he i mean the evidence of guilt against one is over whelming and he's sunk and so even if the even if you'd had this earlier letter and you and you'd been able to cross examine him beat him around the head and shoulders with him for a week the would've made a difference because the jury had him sinking himself absolutely not and i'll tell you why judge the tape that the government is alluding to has one ray arrows on there for about six seconds and there's nothing in culpa torrie by the nature of think they were talking about the shipment of some bananas from from ecuador if memory serves me correctly but there was absolutely nothing in that state that suggested that he was committing a crime without the interpretation of language pri computers language three and professed also to be in the computer business he was paid four hundred fifty thousand dollars by the d e a he also language area for two for doing this case and other cases and he also as part of the joint venture to travel to colombia to meet with to meet with rafi the other coconspirator to further this case in terms of the joint venture i would suggest to the court that page one twenty three and that because colombia shared information with the united states the that made it a joint undertaking your honor i appreciate what you're saying and yeah i'm since going to question yes the answer is yes in the context of seven point five billion dollars of s money to establish a special relationship with just special bunkered that's never been tried so is your legal position that because the united states has given a large amount of aid to colombia that any time the u s government asks the a there's a in order for this to be brady do you agree that it's got to be effectively within the control the united states but the government had to been in some sense  undertakings with control able to reduce it with control with some effort yes absolutely yeah what's not just sit right that in there judge bassler takes makes the point that unless it's part unless they're affected we part of the prosecution team there colombia is a sovereign and the and and their possession of it doesn't equate to american possession of it is he wrong well he makes the factual predicated page fifty nine of the joint and this he says that there's no evidence that colombia was or is a part of the prosecution team right but i'm trying to unpick i'm not trying to get into the facts at this point i'm just trying to understand your position and then i want to discuss the facts with you your is your legal position his his assertion the trial judge assertion is that unless there is a connection sufficient to say that it's a in effect a joint prosecution that's a separate sovereign and i can't attribute the possession that the colombian government has to the american government that's how i read what he's saying you know am i wrong about yeah yes you are and i'll tell you why i specifically judge ordered the government the prosecutor in colombia and get his criminal record that appears i believe will sure he me say you can ask i'm going to try to get things but but as a basis for saying you have it if they have it judge pastor seems to be saying that only works if the hand in glove is he wrong about that well if i might his factual predicate was wrong based upon misrepresentations by the government in other words just bass players opinion was predicated you say is the level of connection between the united states government and the colombian government that would have to exist in order for one to say that what colombia has the united states has yet and most respectfully here are what i would do is i would compare that i would compare that to the government's affirmative representation at page two nine five six of the supplemental look and there's where the government makes the affirmative representation to judge bassler there were they say there were no statements obtained by the colombian government independent of the interview which is memorialized in j sixty one j sixty one was asking us to look at that and say the government was misleading well not only then the next page on the next page of two nine five seven the judge says but how can you represent to me that the colombian government didn't get any other statements from your rebate the prosecutor says i'll make a note to call and the judge says who should you call the prosecutor says that one on page i think is to ninety five seven or to ninety five six maria cristina