and cheap witness in this case was a career criminal an informant the defendant was an unhappy bitter harmless person without resources and without friends and associates the case was build up and promoted by the career criminal in order to enhance his own position in the prison system and to promote his own released in counts one in four is really almost the same thing they have common language must be more than something in all of the six cases decided under that there was in four of them there was actually some physical matter done in the buckle case there were overt acts of the bank robbery and of work in which is the ninth circuit case there was money and then rain and rahman was reversed because there were insufficiency of the evidence in our case there's an insufficiency of evidence and regarding count four because in fact the only thing implicating the defendant are the words and office address of six to four in the federal building in phoenix and little more all of the things about that are enough to point right at judges over well it's certainly not the point if you had children what you have is to inmates in a setting with little to do except talk about their predicament and they talk about their case they talk about how they got there they talk about lawyers they talk about who they knew these people are just talking and they have no access to the outside world and no way to implement anything and it's a mistake for the government to go into these prisons and say well gee maybe we can we can have a case here these people are sitting in there talking about how much they like to do when someone judges they just have no access to that  that he told mr weiss that when he was in a pretrial setting there had been a discussion he had heard that the area and brotherhood was after the judge that was the one who wanted to do when the judge not my client my client was examination he said that on direct exam this is all my only case that i've ever been an informant he said on cross exam he admitted there have been three occasions when he was a foreman he was absolutely unbelievable witness unfortunately all of the impeachment didn't of the imagination of august wife that is not on the tape there's nothing on the tape of that nature the only thing on the tape is a discussion about stale bullets and then they get to silver and an area in brotherhood and room sixty two for my client spent two years going in and out of the federal courthouse of course he'd know what the what the room number was and if you listened to the tape it was august weiss who was doing most of the talking and doing most of the leading my client never intended any any harm against him and by doing both counts one for the government is basically doubled up on the allegations your theory is that why started this whole thing himself this was discount that way that that's not the theory that you're trying this case on you never made a motion saying there was entrapment it's never made an option there was a crime my client denies that he said anything that constituted a threat that the wire was unconstitutional i think that i didn't challenge the wire as to the propriety of utilizing it the wire was challenged on the basis that the government did not preserve the matter credence moving on if i can two counts two and three this is sort of a doubling up possible the agents have the tape recording as of as of the first interview with mr stewart  to do anybody in whatsoever they go back a few months later in january and they say well now what about this again we've got a recording here we'd like you to listen to and sure listens to and he says well that's that's fine but i  still didn't do it mr stewart didn't even know anymore than he was denying the fact that it happened because he never conspired to do it and that was the allegation and all of the broken service interviewing mr stewart then was to either get admissions which of course would be fine with the government or in the alternative to get a no answer and allege that he is lying and this they did thousand and one of title eighteen could be used to escalate completely innocent conduct into a felony if the investigator finds it difficult to prove elements of a crime he or she can ask questions about other elements to which they already know the answer suspect lives she can then use the crime she has prompted as leverage or can seek prosecution for the lie as the substitute for the crime she cannot prove so here's a case where the government had nothing to lose either they get  admissions which they didn't get because stewart didn't do anything and couldn't admit it or in the alternative he denies it and they claim that he's lying because they have mr weiss to say something different happened in a couple of words on a well i fortunately i wasn't there and if you read the broken case it goes into what occurred to broken because he had no lawyer there and they confronted him with things that they already had so called proof and then when he denied it we have to make another count out of it and make another two counts this is where i submit overblowing prosecution these days when almost nobody ever charged with a single count for a crime they may have committed but they have to load it up with two three and four counts whether it's for plea bargain material or whether it's just because they have the resources to do it i can speculate that it seems that a case where two inmates are locked up and my client is  in this in an institution to come up with some kind of theory that he had anywhere with all any resources to do other than other than chewed off his big mouth it is preposterous the male is screened in the prisons the  law well it certainly is a credibility of matter if something there for a rational jury could buy it and unfortunately my arguments to the trial goes to dismiss counts two and three or one of them as it as a doubling up under the  then i guess i lost that one too but the fact of the matter is it should have then certainly the second count of deceit should have been dismissed under all schooling where exculpatory no those are the same questions same answered that's occasions well they may have lied on the two separate occasions but also only holds that this thing answers to the same questions can only be one count under eighteen us code one thousand and one that's the case that i cited it's a good case on that point of the government has done here they said well it was different questions it was a different tenor this time we played the tape recording on the second time they couldn't play the tape recording the first time they could have done all of this with one interview in fact it was a method a looming the charges against the defendant and i submit that that is should be unconstitutional it's unfair it's manifesting  to file supplemental brief after booker and sandman are decided so on my argument seven on the sentence being excessive and so on he would appear that all of that would be most appropriate either in the supplemental brief at the time book or in fanfan already stated or as this court has also done in some other cases simply send the case back to the the trial court for the purposes of reviewing those decisions and that sentencing if you were not to reverse it on the basis of the arguments that i've set forth in my brief and it's a mediterranean you've certainly preserved then you should perfectly well and record here we are all waiting to see what the supreme court does and obviously  was first of all there was a judge over herself who testified at trial who talked about the defendants in a prior trial and talked about the way that his demeanor changed during the course of that trial how his demeanor changed from one that started out as very respectful to one by the end of the trial that she described a smoldering rage you had special agent client a with the f b i who testified about the interviews that he had done with mr stewart and he talked about his demeanor while he was doing that interview and how mr stewart when he would talk about shots over and talk about this issue would become very animated and that's consistent with what mr weiss testified to that when he would have discussions with mr stewart in prison and discuss the judge in his case that mr stewart become very animated about this issue that he became quite exercised whenever he talked about judge silver and when he started talking about these issues about what should be done what's wrong with the courts what's wrong with the law and mr weiss talked about the fact that that he was in fact within the prison within the unit they were in a shock collar and that he was the kind of person then that someone might come to behalf that he knew some people with any aryan brotherhood had had some contacts there was no evidence he was a member but he did in fact admit on cross examination that he had told mr weiss that he could put them in touch with people in the other area and brotherhood about this hundred thousand dollar contract now he suggested in his cross examination that that was because he believed mr white simply wanted to make money and by becoming a hitman for the aryan brotherhood and he didn't believe that it would ever work out that he himself admitted on the killer judgment in silver well judged all i can tell you is that it seems somewhat obviously interesting in the sense that the man doesn't have access to money him self so he's got to leverage others but there's also th tape that was introduced into evidence he describes those machine guns he describes the type of machine guns that they are that they've got a side mounted magazine that they've got no safeties that they're nine millimeter parabolic machine guns the very type of machine gun that he was a wrestler where they are or how they could be accessed on the tape is told he tells mr weiss that he's got someone on the outside that can that can get him those weapons and he just goes on to describe these and was aware of the syrian brotherhood contract what's wrong with the palace argument that this is just locker room talk by federal defendants who are serving long prison terms are are that they actually had that it's not even any proof that they were able to deliver the goods as payment or for use of it why is this just a lot of stupid talk by inmates that have nothing better to do but serve high time and have a fantasy your honor i guess i think that the test is not did they have the ability to carry through what the reasonable listener have believed with the threats  in talking about the judge he went into his beliefs that the right to possess guns are right it comes from god he talked about rulings from judge silver that made his for you talked about knowing the judge's name in the fact that her name was last name was different than her husband's because you had people checking up on the judge when asked about how it is that he was able to give mr weiss the age of the judge within one year of her actual age he responded by saying it was a lucky guess he provided all that information to mr weiss concerning the judge's description her age her physical description her physical location where she could be located and what mr weiss should anticipate the security to be around the court that the judge would get hers in the end and that he also indicated that in another letter that these federal officials had committed brought themselves upon themselves the charge of treason and he admitted to this didn't question the record this is inmate locked up as he is without funds without without really friends can't pull this off i think there are probably a couple things there are one as when he testified on the witness stand he was asked questions like rayney he was asked do people in prison often express their being unhappy with their sentence and what they're judged and that it's kind of response was to describe those people as whiners to suggest essentially that he was not one of those people is a whiner and then subsequently in his own eyes he brought in a character witness who testified on his behalf and on cross examination he testified that in fact the defendant is a man of means what he said yes so i think those two sautner i want to talk briefly about the recording recording device as was indicated in this case was destroyed or not destroyed but it was not preserved what transpired was this digital recorder was used to record the conversation that occurred between mr weiss and mr stewart and subsequently taken back to the f b i where the digital information from that device was downloaded so the computer placed on a disk and the disk was preserved the recording device purposes of presenting on the evidence what you would need is someone that could look at the photograph and say that's an accurate representation of what transpired that's what took place here you had mr weiss who testified that in fact he listened to that but what i would what i would submit to the court is that the reasons for going on there was not he didn't go on to testify it was never to go back simply to make additional charges what transpired here was that in november he went and he interviewed the defendant he did not have the tape recording with him at that time he sat down with them and he said i have reason to believe that you may be involved in some conspiracy to harm a federal judge mr stewart said no i'd never want to harm my federal judge but i am aware that there in brotherhood or some other white supremacist group out there might want to have her killed and there might be this hundred thousand dollars out there for that to happen in essence sort of shifting the blame to the area and brotherhood beyond that he says he knows nothing that he's not involved in any way shape or form and threatening his judge the agent thing goes back in january of two thousand and three this time he takes the recording with them and he plays to have a portion of that recording the first tells him again are you sure there's nothing you could have said that could be interpreted as a threat to any federal judge mr stewart says absolutely not if you place him that portion of the tape specifically the portion that describes just silver where she's located her physical description he says that point mr stewart becomes very physically animated he jumps up and he says that's a wire he doesn't say i don't know what that is i've never heard it before i never made those comments what he says is that's a wire and then he makes comments to the effect i think i know what this is there was a sin meaning whites and he was asking me a bunch of questions and i think he's the guy that's behind versions yes but the but i think that the i think that it's still relevant for purposes of caring whether or not the answer is the same he still denies no i'm not involved and no and the agent testified that his reasoning in doing this was th at this point in time what he knows is that at least by what he heard from mr weiss and what he heard from stewart in the first interview he has this money may be out there and there may be others that are in town on doing harm to judge silver or mr stewart himself may in fact be trying to have th murder still carried out but going through someone other than mr weiss he's been deviling to go back and try to make a determination as to whether or not mr stewart might have approached someone else besides mr weiss to attempt to have the murder carried out to determine whether did it cause the agency to have to do something else in the course of this work that it would not otherwise have done i think that's the two part test but you're correct so the question really is i think did he simply say the same thing twice and because what they were trying to determine was whether or not through his relatives or friends he had anyone he could contact on the outside to actually make the transfer of those machine guns and so they were endeavoring to do that that he investigation was not complete at that point  contrary to what mr ain't so it wasn't the sense that mr weiss was active or a proactive role was completed at that point the of the of the device and could talk about them and did talk about them amongst the inmates with some detail nevertheless he didn't have any machine guns after he was sentenced the government has the mall and the discussion there is a word of about his sister on the tape and his sisters he has two were interviewed by the f b i one of them was called by the defense at the trial she has no machine guns no access to sayin he can articulate the nomenclature doesn't really implicate any guilt and he had no one on the outside and no connection was ever found other than the reference to the sister and they were both interviewed and as far as investigations go i would submit the very reasonable hypothesis that the government really doesn't cause any investigation until after the trial there's always a continuing monitor and there's nothing the matter with that that the government corroborates what i have said that the inmates have no access to the outside world there isn't monitored and it would have been literally impossible for him or mr weiss to have any any connection other than some kind of an inner desire perhaps any connection with the seventy one where or two people who agree to commit a crime must make some overt act now we've gone to the point on solicitation that doesn't need to be any overt acts just the they delusion strong corroboration which is whatever you want to