present a complete defense the right to not have your or your right to testify in french and then there's  i'd like to start off by addressing the st two issues if i may murder on behalf of mr phillips the jury the trier of fact is going to examine the words the conduct the facial expressions to make an assessment as to whether or not that shows guilt on the part of mr philips as this court wells knows words alone are not enough and so the context behind those words in that conduct was highly relevant highly probative  at issue is that he has a physical condition and stage kidney disease that affects his ability to understand he's fatigued he's tired but more importantly has a catheter above his fo if it's displaced he'll bleed to death rapidly these medical and physical facts are not in dispute we litigated in new orleans the case was transferred to california specifically because of his medical condition incidentally how did so make a criminal defendant more sympathetic is not properly subject to exclusion under rule for three so from the get go we have a part of the argument was  fist catheter that was in his army was worried about displacing that if you had any kind of a physical encounter with it with mr ass what what what might have prompted a physical encounter what why would it why would he why would have always two hundred and seventy five dollars pounds and why and why would he why would he feel afraid of that in the prior pretext phone call which is in front of the court he had stated that he had knocked a patron unconscious this is a violent man who's informing my client that a murder has occurred at that point the jury expects my client to say something to the effect of what are you talking about i didn't ask you to do that are you crazy but mr phillips can't risk to contradict it he can't risk a confrontation because something as simple as a grab or a shove or a punch could lead to displacement of that catheter he'll bleed out will be dead and so the trier of fact had a right to know and he had a right to present that the reason i didn't confront mr you know i wasn't cause i was guilty it was because i carry a fatal risks this wasn't a simple as i was scared i was going to get my butt kicked i didn't want to die how how were you planning on introducing that evidence through the defendant himself but did he end up testifying he did not end up testifying because he was told that if he were to testify in this is in the transcript the rule twenty nine motion i re raise the issue that if he testified and he's cross examined on these issues he cannot answer with the medical and physical truth now that's not a right to testify that's an infringement for the right to be meaningful the defendant must have the opportunity to address the crucial evidence against him in any case where the where the government has sole control and custody over the context of the evidence it's go reversed if the court felt that sympathy which is not a proper basis for exclusion bless pretend it was there are a number of solutions one is a government if you don't want sympathy don't put it into evidence because the defend their case exactly so so it has to come in right right so once it comes in we have a right to respond to it because what the court is saying is that was important evidence and you can't block the defendant from  important evidence the jury had the right to assess the weight of the import of the fact that he has this catheter and his fear and how it how it controlled his responses and reactions so counsel there was some discussion in the record this correct is there anything in the record actually says what do you offer to sanitize it in some way is there anything in the record to say what the offer was in terms of senate sanitization if i can use that word well it was left to the court to decide how to sanitize it obviously the easiest ways to not use the term in states kidney disease simply say that the defendant suffers from a medical condition that causes fatigue or maybe what the point was he wanted to put it about the catheter because that ruptured if there was a physical confrontation points are important so didn't you narrow down that was argued that it could be narrowed down as low as to just the catheter i would feel that was still not fair to the defendant but at least we don't have an all or nothing the court approach to doesn't all or nothing proposition and it wasn't when of course faced with a potential violation of a right to defend yourself you want to proceed with caution and i would just going to work work through this but if you couldn't bring medical evidence to talk about the catheter you certainly could have talked about the question of fatigue and the brain fog but you chose not to put your client on the  to those is the fact that he says he's tired doesn't help us it's the basis for why is tired that gives credibility to it anybody can claim they were tired anything but he could say hey i didn't sleep last night so my argument here and it's good as it would otherwise be as opposed to i have chemotherapy this morning there's a difference there's a qualitative difference between the evidence we were prevented from using the evidence that supported the claim let's not confuse the claim for the evidence that supports it right but you didn't even you didn't even put on your client to give to give you evidence about the fatigue brain fog at all it's already in evidence through the tape he's saying in the tape i'm tired i'm brain dead i'm confused that's already it has to be of scan value this is probative value that impacted his ability to explain the most important piece of evidence to say that we can see beyond a reasonable doubt that that was harmless error would be did intellectually dishonest will be error that the error was harmless and got more law will start off with that so that was a question you asked i'm not going to downplay the importance of the confrontation video it is a key piece of evidence but i think it's important to understand it's not the only piece of evidence that was in this trial and it's not the only piece of evidence that the jury heard for example the jury heard the history of the bad business relationship between the defendant david phillips and the victim stephen for they heard about the partnership go inside our they heard about the accusations of stealing clients and business and they saw a series of messages from between the two including the very contentious messages from mr phillips to mr fruit or the last one of the last ones which said don't push and being a reason to kill someone what that doesn't seem like much of an escalation even those e mails sure you are just give a little background on it mr phillips and mr fruit there weren't actually business partners and  became a competing question about a software program that mr filter developed mr philips thought their company still had rights over it but again consensus mr fruit eventually leaves the business and develops another business on his own and then there's the accusations going back and forth of excuse me of taking clients in business so i'm summarizing it briefly but that's kind of the basis for it that this partnership just went south and got very odd as the ordinarily that doesn't result in himself the person who mr phillips approach to carry out this murder for hire they had the chance to hear that directly from sue in iowa and that and that was with hearing all the impeachment all of the violent history of this past all the criminal so this was something the jury mr phillips well st of all mr phillips and loaned the money for a marijuana venture and when mr soong noel lost that money he had a debt he had to pay it back mr sewell it told the jury mr phillips said i didn't have to pay it back if i took out someone so if out for and mr soong now explain that that meant murder they also heard evidence that mr phillips had given a picture of the victim to mr sewell and also they also heard things later on in the investigation and one of them judge bobby a believe you had asked about mr phillips meeting this man and what was the threat opposing counsel mention that in a set up call before the meeting mr sewin no busy i hadn't mentioned that he had been fired as a bouncer for beating someone else beating someone up yet after hearing that mr phillips still met with mr soon that when the jury heard that the jury also heard about the events of the search of mr philips office after it where they found a shredded photo of say mr sewin no i just told me he killed someone he never expressed any fear of mr soong sewin no to the contrary what the jury heard in that conversation was that mr seward know us at that mr phillips and mr soong know was always a good guy a nice guy to me so while the evidence of the video confrontation is important it's not the only thing from which the jury could fit to do so and recently infer that mr phillips was guilty and so the exclusion of this evidence if error is harmless at best but in any event the district court did not abuse its discretion this was not a rash decision that the district court made the district court had the chance to look at this evidence in three different lenses at three different times st in the pretrial motion in limine a before any evidence was offered then at the try well as the government was closing its evidence it had the chance to assess it as the evidence was developing and then in the rule thirty three new motion motion for new trial with perfect two thousand and twenty hindsight to see if there was any error to see if this evidence would have mattered all three times the judge came to the same decision that this evidence the any program value was substantially outweighed by a fear of sympathy not just sympathy not just making a defendant sympathetic this is not the frampton case where there was an unspecified promise of something in the future that might happen this was not the chong case where there was no agreement showing an understanding between the solicitor and the hitmen it's not any of the cases that the very ordinary term is is in return for something here forgive the loan in return for the hit that meant something to mr sewell no he had a debt to pay now he didn't have to paid any more and that i might be wrong about a member leave at one point mr sewell no said he did not know the victim before that he got the victim's photo from from mr phillips in my memory the record is that's the st time he knows based on that your honor and everything we believe element is settled we do not believe there is an abuse of discretion but even if there were in light of all the other pieces of evidence the jury heard and he ever was harmless unless or other further questions i'll submit in my brief and we would request the court affirm substantially outweighed by prejudice as not the standard it's unfair prejudice and there's a big difference between the two it doesn't address the high sure ruling or anything akin to that it draws down on a district court case from new york with inapplicable facts and it doesn't mention the catheter even in the order after trial it restates the wrong standard so great deference can't be shown when the correct standard wasn't applied as to people here again the statute is clear there nothe must be it must have something of an economic value anything but it has to have an economic value and for you thirty thousand dollars in debt is not no because the money was paid in july and it was gone before any agreement to murder was entered into so by that point so we know a tells philips i screwed up the money is gone and thought says ok murder somebody there isn't an actual debt and there is no end to the money had gone then there wouldn't be any any need to forgive thirty thousand dollars right you still have a thirty thousand dollars no he squandered it all and that's right that's why he needed loan forgiveness well then forgiveness is a civil term that doesn't apply between criminals what it is is ice why would why not that was it because they weren't criminals at the time they're criminals on the evidence that we're looking at right now and if what he's saying is i screwed you and built the same great do this murder for me does he have something he can sell no does he have a debt that he can transfer no does he have let's say sell the level of drugs or gun or money or a check or something he can put in a safe no he has nothing of economic value he's a deadbeat who never paid anybody back and nobody's pretending that he would and when he was asked by the government at gage seventy three day five of trial testimony why he did the murder why he agreed to it his answer was to preserve the business relationship with david phillips it wasn't because it saves me money so the facts do not support that element it's not there well to preserve a business a business relationship there would have been no business relationship if you didn't pay back that if you didn't pay back the money or do something and in return right that's true that that meant that there would there would be some basis for a future for future business dealings between the two and the congress meant to say quid pro quo in only quid pro quo the court would be right but what it says is economic value and it's been interpreted in frampton to mean something that actually is worth a dollar or b can or can be transferred or sold if you go back and look at france and that's what it says