thank you your honor amy cleary on behalf of alexander bradford i'm going to try to reserve two minutes for my rebuttal this case brings forth challenges to violations of mr radford's constitutional rights specifically his sixth amendment right to confront and cross examine witnesses his fifth amendment right to present a complete and full defense and his fifth amendment right against self incrimination this case proceeded to trial below an unlimited set of witnesses and facts of the case involved a felon in possession charge the government had two witnesses one who could provide only circumstantial evidence of the firearm that was found and one who could present direct evidence of the firearm that was found the circumstantial evidence witness was mr officer miller who had on like many other officers a very tainted past and history with the department he had a history of demotions and pay he was on performance plans that he did not complete he came with baggage i'll say so the only witness the government had an attempt to show that there was a firearm directly leaving mr radford's body and hitting the floor with cassandra thomas the problem with miss thomas and with the proceedings below was that one week before trial the government gave a statement to the defense that says although miss thomas prior statement only said that she saw the gun fall from mr radford's pocket she 's now saying that she had seen that gun with mr radford that night and then he was actually digging around in his pocket when it fell that change in circumstance required the defense to work to find a way to deal with this brand new evidence one week before trial the way the defense had to deal with that was to get a continuance of the trial proceedings so that she could obtain miss thomas social security records there's no dispute that miss thomas had a learning disability and that she was on social security there was but it isn't it is clear in the record is there's nothing that we can find that say what's in the cells carry records no there's not in fact the district court again suggested in making its ruling that there may be records that contain evidence that would peach they would that's and there may not it me also say that and that was where we are here is it not that's correct your honor but i would direct this court to its own precedent and all  you that we put in our briefs us versus coring which states that mental health evidence is material can be material to the cross examination of witness or snow doubt it can be material and in fact the district court gave counsel the opportunity to cross examine about those mental health issues correct correct and he did not or she did not she did not your honor was it you know it was not i don't think it was so i didn't know for sure the counsel didn't him but i even tried to cross examine about that and i think that there's two very practical given the fact i mean why i'm pushing you as a little bit is that one of the factors i have to look about you know abuse of discretion in these situations is that the prejudice there must be prejudice to the appellant the very fact that this record gave you the opportunity to cross examine your client and nobody cross examined into the issues doesn't that eliminate the prejudice which is factored for my answer is no for two reasons one if counsel had cross examined on whether there was a mental illness when we already know that ms thomas was adamant that only her only disability was a learning disability counsel had nothing to attack that answer with there was nothing to back up any questions regard where we were supposed to cross examine and we had a mental health issue and we really didn't have any records i found a way to make the cross examination effective and i tried and frankly the jury helped me out so i guess i'm i mean my worry is that i first of all this is an abuse of discretion correct and so i have to look at the four factors and the last factor is the one i'm really pressing you on correct because that to me is a tough factor to overcome when i don't know anything there's nothing in the record a o q and us versus rivera this court stated that when you're looking to determine the utility of the records that you were trying to get or the evidence that you were trying to get you didn't need to show specifically what you were looking to pull you need to only show that there had been evidence helpful to your position that could have been produced so it's just there is evidence i'm sorry your honor you see there is evidence there are social security records that's read to us there is evidence evidence i'm not saying that there was evidence in the record other than the fact that she is on social security and she does have a learning to disability it is unknown the extent of her other mental issues the is part is  and i would just direct your corps there's no dispute that these records exist social security doesn't give benefits to people willing merely there's doctors reports there's all manner of things that document this woman's disability that's what we needed so that we could contest her past perceptions of the event she's the only direct witness before the jury and i also suggested and i had cut off on the second reason when your honor was question regarding the prejudice it's very difficult to put a question to someone who is believed to have a mental illness who defense counsel found floridly psychotic a representation that the district court excepted to ask someone who has those issues if he or she has a disability that's inappropriate why would we trust someone who is only claiming to have a learning disability to have the wherewithal to accept a question like that in come forward with medical information i just think that's inappropriate and i think that the district court abused its discretion we now hear that are there any other of these issues like you're absolutely right or the second issue that we raised has to do with officer johnson's comment on mr radford's silence when he was in custody the district court the first time around agreed that this wasn't something that she believed needed a curative instruction not only did the district court change course on that but when she gave the instructions she backed away from the ninth circuit's pattern instructions and actually took  out of the jury charge the language about the district court sustain any objection here yes your honor and after that so we're really talking about if the district court sustains the objection so they've gone that far we're just talking about did they need to give a further curative instruction correct or ana and so reading the record as we read it then i am supposed to suggest this is an abuse of discretion use this i was in my mind i'm concentrating when the district court did not give a jury instruction on the right to remain silent in this particular situation seems to me that's a that's a discretionary decision in the district court mind and i guess what i'm trying to figure out reading the record whether that really was and whether i can find it was an abuse because there's no question there was an in a an objection and a sustained correct and so the jury knew that what was asked was wrong and your client had every benefit of the doubt him that any times i like the sustained better than the disregard talking we guess what this record was going to say may not help so all i'm down to is is this abuse to failure to give this instruction i disagree that this is an abuse of discretion review do you think  is united states versus opening brief on page thirty one and also direct the court to us versus newman nine four three f second eleven ninety five and reviewing whether this air because it's an it's a constitutional right and you know what it is but first of all you've got to find that this was a comment correct then which i'm not sure it was a comment then you've got to say ok and i novo review it that's all i'm pushing you on so i appreciate your answer thank you were there any further questions colleagues thank you very much thank you  all read for the united states as we noted in our answering brief we the government believes that this issue about the continuance was arguably waived by the defendant at trial when the morning of trial the government was having difficulty great difficulty witness problems the ms thomas the witness who is the subject of the continuance request by the defendant could was nowhere to be found even though she was under subpoena and the court was grappling with the government's at this point the government's request for a continuance on the day of trial and well first of all i think we have put this in perspective seems to that the fans did not at that point did not want to continue they wanted one to begin with and then it came to this point and it seems to me that what the defendants said was if you're going to grant it grant for sixty to ninety days isn't that what they said that is correct how do i get that into a waiver it seems to me what they're saying is we're not we're not anxious to have this continuance now but if you're going to do it then go for how long we wanted it in the first place that doesn't seem to be waiver language at all your honor the only point i hope to make out of that is it put the this record in and sort of an untenable situation any whatever decision the district court made was going to make was going to be objectionable and well i understand it might be objectionable when you're on the district or you know that you've got to make rulings i'll i'm trying to do is i'm trying to say if the government really wants to way way way waiver in front of me they've got to say where the waiver is i don't think that was a waiver i think they objected but they said if you're going to grant it go sixty to ninety days which is what we wanted in the first place defendant is unable to show any prejudice and they're here the district court did not in the government's view did not care when it said there may be records as your honor noted or there may not be records that and there is just no evidence that the records were helpful that they're going to be admissible that they were in any way going to help with the cross examination of this witness th as your honor noted earlier in the colloquy the defendant did not even ask the witness who was really a very is a very brief cross examination didn't even ask this witness whether she had any sort of mental infirmity disability  learning disability or was otherwise impaired in any way in her cognitive processes so that's additional evidence that the information salt would not the the district court sustain the objection but after having reflected upon it i think there was a recess and district court i think reviewed the transcript of the from the heat of the battle so to speak and made a determination that this was not even well first of all the district court noted that at the time the objection was made that there was the defense at trial was that there was no investigation into this underlying battery that precipitated the officer responding in and one thing leading to the other in the fact the farm being recovered that there was no investigation into this incident where mr radford was attacked and that the officers answered deals with the incident where he was attacked and didn't even deal with the subject matter of the criminal offenses and then later after having thought about it the district court in denying the defendant's request for the curative instruction excerpts of record two forty one so the answer from officer johnson deals with the battery assault incident and has nothing to do with this case there was no accusation  i need to give the district court any deference in this determination yes your honor in the abuse of discretion the government agrees with the court with your honor that an abuse of discretion standard does apply to this type of eviden during his records i'd be making the same determination as the district court here right i'd be did novo if i did not give in given the deference then i would have to look at what was said in the circumstances of what it  was and whether it needed to be given right yes your honor well if one if one is silent in response to question  was telling the jurors that there was no investigate nobody was going to investigate this underlying battery and there were questions to the officers about did you ask my clients about the battery nobody investigated nobody took any photographs it certainly was the government had a right to at least respond to what steps were taken if any to to investigate to to  that is that nothing was done that was the defense in this case that it was sloppy police work and that this farm was planted on this defendant because sloppy police work and nobody was going to investigate this underlying battery set off the response was related to did the defendant give any information about who attacked him were how he was injured so that i would submit that that was i'm not saying in invited air but certainly  responsiveness permitted as part of the government's case in chief well did the government did the government do any more with that silence other than the question that was objected t question that was asked was i'm paraphrasing was did you do anything else in relation to your involvement in this matter and then officers gave his answer that was objected to and then the prosecutor relinquish the floor thirty seconds little because there's a constitutional claim at issue so the review of this court is whether there was harmless error and because it's a constitutional error it's harmless beyond a reasonable doubt that's what the court would need to find and it doesn't exist here and i would agree with  did i can and i would agree with your honor that the questions that were posed to mr radford were questions that were covered by doyle and that should not have been commented on and i would direct the court t e o are to fifty four where the government in its closing does ask the jury to infer guilt from his from mr radford's conduct in the case and although it didn't specifically reference mr johnson's question that was the whole point of the government's closing is this what an innocent person would have done and for those reasons we think that the district court violated mr radford's constitutional rights thank you thank you thank you for your argument case one five one zero one six six united states versus radford is submitted and we'll move to case one five one five two four zero zero scott versus arnold