doug keller on behalf of mr krug because of the litany of errors in this case mr krug didn't get what the constitution promised him which is a fair trial i think the most pernicious and most straightforward error occurred during the testimony of joe's of devor who the government called quote essential to its case mr door never heard mr krug make the alleged if i should statement nevertheless the prosecutor elicited from him that based on quote his training and experience mr krug had made  opinion that in his training experience this was a true threat or was it just a shorthand way you think of explaining you know i have some training experience and this is what motivated me to give the advice that i gave he only testified that it was a threat but a few things one threat is still of course an element of the offense and there is of course also substantial overlap between what constitutes a threat and what constitutes a true threat so when you have an expert witness who's telling you that i've been in prisons for twenty one years i know prisoners and what he said amounted to a threat certainly the jury could have taken that and i think they likely did take that as really strong evidence that mr krug had in fact made a threat meaning that he had and a reasonable person an argument it i'm sorry intended to make a threat it's not a particularly large leap to get to a true threat and so i think the fact you had an expert witness telling the jury that an element of the offense threat had been that they could certainly use that not only find a threat had been made but also said during closing argument this is on your five thirty nine i'll quote directly from the record you heard from just a divorce that this isn't the disciplinary hearing officer at the bureau of prisons the expert on inmate violations in this conduct he consulted with mr de vore about the threat mr before mr de vore confirm that yes this was a distinct threat it qualified as a threat and it's also of course has to be viewed in the context of what happened in this case this wasn't the only mistake that the government made the government had a constant campaign of having witnesses tell the jury that yes this was a threat and that yes mr du said it properly remembered what mr truck had allegedly said you've got a plane here hurdle don't you yes what do you do with the fact that both the government and the court the court in the jury instructions called special attention to the distinction between a threat and a true threat doesn't that take care of the problem no absolutely not i mean as i noted at the day the threat definitely was an element of offense we know that that is no more the offense and we also know that while true threat in threat are different things of because they they were being told it was a threat they've course did not make the if they can make the very short leap to it also then qualified as a true threat i mean  might have this misheard something he might have only misheard a word or two but of course a word or two can make all the difference in a case like this but with respect to the other defense whether this amounted to a threat that was all he also a very plausible overwhelming or at least to use the government's where there was ample evidence of guilt but the prosecutors who saw this case who lost the first case in a weren't able to convict mr crook even of the last of the more serious offense in the retrial they thought they had to take these risks and i think there's something to the and the crowd laughed and so the fact the crowd laughed was considered relevant context to what was said they didn't introduce into evidence that the crowd then thought it wasn't a threat the fact the crowd objective lee laughed because certainly something the jury infer that meant it was or wasn't a threat so certainly the fact that mr dusek took this threat seriously in all its actions consistent with that was relevant evidence but the fact that he subjectively thought it was a threat is simply irrelevant and it's incredibly misleading because a jury could relevant to do sets reaction it was incredibly prejudicial in this court's decision hanna noted that having someone get on the stand and testify as an expert that something was a threat was was quite significantly misleading i think that that's exactly what asked based on his training experience for this and that it's a threat so what were does that leave you well leads me to the fact that in the first trial they were able to get a conviction but in the second trial when they when they made this argument they were and so i certainly think there negligence negligence is not reasonably or deliberately arresting someone while the process we don't know what it is because we don't know anything about what actually happened here all we know is there was one that there was a therefore by default and we're talking about negligent the burden of proof being to show some bad faith or recklessness there is no evidence of bad faith or recklessness in fact the government is in fact conceded negligence well a few things one of the good the government bears the burden of that well a few things one if you either agree with me that this is recklessness i think then this is an easy case for presumptive prejudice and so i think in the burden shifts to the government i also think if the court doesn't think there's enough in the record at the very least we ought to get evidentiary hearing so the government can tell us what was happening during these two years but next for me the dots reckless prejudice why if it's reckless is there you're suggesting automatically prejudice as opposed to if it's negligent there is no prejudice or it's a different burden to play courts have linked the reason for the delay in the length of the delay to whether you to make out either whether you either have presented prejudice or whether you have to prove prejudice so if you have recklessness which is obviously much worse than that legends and you have a somewhat lengthy delay in a very simple case all that adds up to a strong presumption of prejudice in the burden shifts to the government and so  whether it adds up enough to then create a presumption of prejudice so it's all right but if you had some evidence that this was purposeful then it would make sense to link that to the presumption of precious thinking well if they were purposely trying to  plant then the likelihood that there was precious higher think that they must have thought there was a reason to try and to laugh but if you just prove recklessness how does that cop is there any case like that no there's no case with  facts like this one can you answer judgments question about what is the actual project let's say it's reckless somebody just threw it aside the file and never followed up on it how is it prejudice this is a case where as far as i can tell from the  record there's no there's no difficulty from the government's witnesses recalling what happened and it's a case where the defendant didn't testify to present a contrary side we can argue well people's memories must have faded and there are two conflicting testify of course his memory of what happened will help him cross examine mr doucet and i think that the thing that makes this case different and unique is that mr doucet as we know memorialized what he thought he'd remembered mr crump saying so he had moralize the alleged threat so over time he was never going to forget that statement all he could forget was context and that context certainly could have put but in fact mr kronk was interviewed right afterwards and gave a version it wasn't this version and was the same for it was a different version  his was more lies as well sure but once in a week or something like sure but that there's still more context to it in the day of course whether something is a threat is very context dependent and so even if we knew to a certainty what exactly was said we still  motion to dismiss he i'm sorry that a pretrial hearing when he testified testified of course he couldn't remember some things about the context of their conversation i think that sort of just you know flows from our common experiences when something  know passes and there's three years that goes by that it was you know witness so the exact details can't matter very much and he didn't testify i mean i suppose one response might be well that's why i didn't testify i didn't remember but he  but it's more than that though because he needs to have a good memory of what was said in the context when he was cross examining mr doucet whether move mr you said said something that was actually inconsistent with mr krebs memory that could be something he could pursue i was one of yours or not it wasn't the other two points or one this was a very simple case to use the prosecutor's own words so the government didn't need a lot of time to prep for to try this case it was they had five witnesses they are all government witnesses they essentially wrapped up their investigation before he was even indicted that the third point the third point is that mr krug was pro se during this time he was pro se because the government never brought him to court to arrange him and so i think that has certainly an good afternoon your honour's may please the court you're in cultural for the united states i'm happy to pick up on mr gore's testimony if that's where the cantor came from and you can take some extra time to just frankly say ok i appreciate your honor i'll pick up with mr divorce testimony because i believe the court indicated that they believe that maybe defendant strongest argument here and particularly point i'd like to return to the page that the counsel was citing to in the government's closing argument in which counsel sorry your brief says that was not mentioned in our and closing argument that's incorrect mr divorce testimony yes that is incorrect that is incorrect but but it was said in a different context and this is exactly what we're talking about here are five thirty nine talk what's discussed here is do sets subsequent conduct after the threat and mr divorce involvement in that conduct in explaining what mr doucet did counsel stopped reading at one fifteen when he said it qualified as a threat seven lines down at line twenty two the government says now ladies and gentleman we talked about the threat and the words themselves are a threat without question but as i talked about when we discuss the law one thing that we need to find is whether this qualifies as a true threat and a true threat is a valuated and looked at from a reasonable person standard whether a reasonable person a person of common sense would view the statement as a threat the government clearly did not conflate these two factors the government to clear  it all sounds sort of like up a ticket doesn't really threat is really a threat but so it's really what we're talking about the first time these are these are separate elements of the offense these are distinctions that the court tells the jury they must draw and it is emphasize e he is an expert knew that mr krug intended this to be taken seriously first vor was not offered as an expert witness i wasn't offered as one body he wasn't he wasn't it wasn't properly or for just one but it was presented as what your honor we would argue he was not presented as one there was a straight question buried in his testimony in which in which he's asked if his conclusion that it was a threat is based on his our our position your honor would be that that straight question cannot convert a lay opinion into expert opinion or not as properly and candid they could but but certainly in terms of what the jury heard it was that this person is an expert and you should particularly said but it has to be viewed in the context with respect to the line of questioning in which that was asked that line of questioning involved a long string of questions about the admin of administrative procedures that you set followed after hearing a thread immediately following the question after divorce asked whether he thought it was a threat his next question was and did you provide you set the codes he needed for his incident report followed by did you tell doucette that he needed to inform others of the threat this was in a line of questioning about administrative procedures and made it clear that the thrust of the questions was about the reactions that you set took in with this with the with respect to the threat that he heard and this was further emphasized in closing when the government talked about divorce testimony as the expert and the government should not have referred to him as an expert but again looking at it in the context the context was we are talking about the actions that you said took and that and that divorce testimony about his involvement in those actions and sets reaction was separate and apart from intent and that the government clearly pivoted to a separate question and once the government pivoted to that question the government did not rely on divorce testimony whatsoever in fact divorce was not raised by the government for the balance of the summation or in rebuttal the board never came up again after that point so divorced testimony was really cabined for this particular point about what actions to set took i'd like to get to another point that the court elicited in its questions which was about plain error and this and i may have been judge prison asking about if this is intent what it intent have to do with the government's proof the thrust of this case was did defendant say the words that you said claimed he said that was the thrust of the case in my in my analysis of the defendant's closing argument which i believe spanned forty two pages less than one page of those forty two pages concerned this argument that this was a conditional threat that therefore he didn't have the intent to make the threat the balance of that state and the balance of the argument was about attacking two sets of credibility saying that doucette conspired with other and i mean we have to take him as counsel that's the risk that he takes by proceeding pro se and we have to treat him as an equal counsel in that regard he argues to the jury he says this is in g r nine fifty six he says quote how do you prove you didn't say something it's your word against his and if he's got more credibility than you you're going to lose that battle the senate realized that he was in a credibility battle with doucette about whether he said those particular comments and the government elicited substantial evidence at trial that showed that what you said claimed the defendant said was consistent with a long pattern of behavior by the defendant in not that the defendant was was focusing on ok well i certainly agree that the government recognizes this was an element of the offense that it needed to prove but i think what the record reflects is that the fent realized that this was not where he should focus his attention because he wasn't going to be able to convince the jury that those words if they were said were not a true threat was there anything in the jury instructions that bring any clarity to this yes your honor the jury was instructed that that there were offense the first element was that there was a threat made but then the instructions are further made clear that in order to avoid a first amendment problem the jury has to find that it was a true threat meaning that it was a reasonable person believe that the listener would have perceived it to be a threat that could be acted upon and following the following the rebuttal argument by the government the jury the court gave a further instruction in which he  true threat is just a specification of what we legally mean by a threat that's culpable because i mean if i say something answered joe then it's not an ordinary person would say that's not a threat  he was kidding i understand what the court is getting at but i think these are fine distinctions that we find of the law all the time one analogy i can think of is with regard to false statements we have witnesses testify about lies and misrepresentations and false statements but the jury is told that you must not only find that there was a lie but it was material so if you similar here that vocally i'm sorry but that's different you don't lie it can be a that's that's that is a lie it's not not a lie and the question isn't doesn't matter that's a separate problem but the question if somebody says something like oh i'm going i'm going to kill that person and see what he really annoyed me that day when nobody would i mean that's not just what could you say that's a threat but it's not a tru would you say it's just that it's an ordinary parlance in ordinary parlance i think you could say that there are situations where the person making the threat intended it to be the threats but the person the listener the one receiving the threat threat did not for example a child i think there's somewhere in the record there's an example of a child either pointing their fingers like a gun or threatening to do something at an adult certainly the child could be so angry that the threat the child believes that to be a true threat and wishes to act upon whatever they're threatening but the listener understanding the context of the situation and a reasonable person would not believe that the listener interpreted that as a threat that's why they are separate elements i mean these are separate elements of the offense and both the court and the testimony intends to import a scale of culpability with respect to cause that simply does not exist in the case law once the court determines that it is the government's fault for the delay which the parties agree is the case here it becomes a binary question that is cause intent to hamper the defense in causing delay or not that's the that's the issue here defendant has never said that the government intended to cause a delay as never made a profit to that effect in his motion to dismiss he doesn't didn't care i think that's an interesting factual pattern and i think here the facts of barker are instructive in barker there were two defendants charged with murder and the and the government sought to have the first defendant to try and  and try to convict it so that that defendant would then cooperate against barker the first defendants trial took a long time and i believe there were maybe multiple trials that ended up being that the government sought sixteen continuances of barker's trial the last four of which were opposed by the defendant and that lasted for a period of five years four of which the court ultimately attributed to the government under those facts a four year delay where the government was affirmatively taking actions to delay a trial to benefit its own case the supreme court still did not apply the stricter standard under the second factor saying that the government intended to hamper the defense so under this recklessness standard there is no case that says that a recklessness standard changes the degree of prejudice whether and it's certainly the defendant's burden under the case law to establish prejudiced defendant has been unable throughout this period to establish prejudice and cannot do so here let me just returned quickly to the second element and about the evidentiary hearing the court gave the defendant every opportunity to put forward evidence that there was some type of bad faith or intent here and hunt possibly do that i mean he had no idea what happened to this case from the time right but for evidentiary hearings this court is typically has as regularly required some proffer be made it can't just be a fishing expedition there needs to be some theory discovery there was some documents that were provided to the court but in denying the order it footnote twenty three at your one zero seven the court says that the defendant quote does not assert that he will be able to elicit any evidence at the eviden stream of litigation filings of fat's negligence tell me what recklessness would look like well again your honor our position would be there is no such thing as recklessness with respect to this factor and need it may very well be recklessness under some other analysis but with respect to the second factor under barker recklessness is not an issue the issue is was there an intention to hamper defense and there simply is nothing in the record that indicates that whatsoever with mr kratz file who had gotten all these motions they attempted to file as far as i can tell your honor from the record all of the pleadings were sent to the criminal chief of the u s attorney's office who obviously is a supervisory court the government sees this as a failure the government takes this seriously and understands this was a real problem and has since not directly as a result of this but i can proffer to the court that the u s attorney's office now uses an electronic case management system that he was tried in tennessee and he was he was in tennessee in custody at the time that he made i'm sorry he was out of custody actually at the time that he i'm going to get the  after the motion to dismiss was denied and after defendant elected to go pro se the court asked if the defendant was ready for trial and at that point defendant said that he was quote totally unprepared for trial and asked for a continuance this is that you are one thirty seven so it's difficult to see how the defendant could be entitled to the severe relief offered under the sixth amendment if the final continuance was one that was granted a defendant's request without a between threat and true threat at the end of the day that i don't think the jury was going to draw these like sharp distinctions the government wants wanted it to draw and i also think the government's argument continually ignores the fact that threat was in fact an element in both hanna romo that the two cases with this court held that expert testimony about whether something was a threat was inappropriate both those experts simply said the statement was a threat this court didn't say it didn't matter he didn't testify it was a true threat they thought the fact this court thought the fact was a threat was the person who hears a threat then goes reports it's the police here's the police tell them yes that was a threat you should follow report and then at trial the government putting the cop on the stand and saying did you think this was a threat based on a train experience yes and the government argument well it was relevant because it provided