government has the cell phone records that issue and didn't turn them over to the fence until after mr martinez is trial so the only disputed you hear is materiality whether there is a reasonable probability that had the evidence been disclosed to the times result proceedings would have been different or to put it another way the question is just the fact that these records were suppressed undermined confidence in the outcome of mr mark in his trial obviously the significance of this press record must be balanced against the other evidence presented at trial and for that reason i'd like to put aside the cell phone records for a minute and talk about the case that the government had against mr martinez and to show how we could really was now the government's case physician in this case was solid as a rock significantly completely numerous problems with the government's case against mr martinez those problems are fully covered in the briefs and i'm not going to repeat them all here but there are two things that i would like to address because there are things the government has never responded to and maybe the government take the opportunity th a chevy astro van leaving the scene of the crime when he was shown a picture of the van owned by march saul are ryall oh the band for this cause that was used to drop off the shooters and serrano a man with over twenty years of automotive experience government's whole case they don't like to acknowledge of the government's whole case rested imax corvus ago and his credibility so anytime a witness who has no axe to grind no reason to lie comes up with be long if not lifetime terms in prison because they were both fearful of the death penalty so that gives you know even the strongest witnesses a very serious motive to lie and i think the court is the best best person that can make that determination self i suggest the court that if it goes and looks at each one of the goes tape recorded conversation and forgets about any other information it has there is no way based soley on the language used in that those conversations that anyone can say that they were talking about richard serrano or shooting up american performance i want to one thing clear though i'm not saying that those conversations are not going to sound and not i'm not here i'm going through them sequentially but obviously the court looks at them as a whole and the witnesses kind of compound on each other i do i don't think that the government would dispute that when it comes to the american form of shootings putting aside the the evidence state testimony about a bunch of unrecorded meetings and that's where all the significance talk really happened these unrecorded meetings but we only have his word about these tape recorded phone calls which i've explained do not preceding and in fact one time i got out of that van who made serrano nervous and there is no way that can be reconciled with the rest of the risk of his testimony where he says that the only reason we went to shoot around when that day is because you happen to pop up in city terrorists and we followed him to american forms so that you are who is the natural that's all the evidence and i've tried to go through and explain the problems with each of the evidence to the third jury that acquitted every other single alleged participant in this american performance shooting that that gives this court the evidence much better than it typically has when has to make this kind of call about how weak the government's case was so now i'd like to turn to the cell phone records to show you how they want to sculp a tory and if they would have helped out mr martinez the afternoon of november nineteenth and he then repeated that to the jury that quote they were just waiting for the ok from my team as to through the walkie talkie unquote and then he says the jacoby told him quote we got the order from talkie but told the shooters to wait ten or twenty minutes or so so he did out of the area first i have three responses to that first i think this court should find the brady documents like these that require the government to change history the case cannot be material i could that addresses this particular issue but i think that notions of fundamental fairness for what the court from affirming to conviction under such circumstances based on what a jury might have done if it presented with the government's new and different theory if the government wants to retry new theory let a present it to a new jury a new trial second the government's mysterious difficult to reconcile purpose testimony about how all the participants explain to him in detail what happened in american performance if implausible that he would not have known if mr murkiness that issued a delayed order to give himself an alibi in time to get out of the area and if a risk was known about it he would have asked about about third the government has apparently already presented its new theory to a jury in the the records show that the meeting described by tortoise go where mr martinez supposedly came to see him at his house on the afternoon of november nineteenth could not of happened this meeting was important because it was during this one recorded conversation that supposedly mr cell phone records show that this remark he knows was on the move all that afternoon and the one time he was in the same area long enough to have any sort of meaning he was not in the area where couples go live second to the records also show that i remember eighteenth the day before the shootings mr martinez was traveling around the same general area he was in november nineteenth specifically to shows he was within a mile of american performance at four thirty that afternoon this is significant because it shows there was nothing america formants farther back is making a big deal about him being in that area then hang around that area that's where he lived as a point on the priest his girlfriend of there he owns a store there that's really nothing unusual about him being there and these records would have reverse the counts related to the american form of shootings but actually the government's pretty violation of the entire trial and so all of mr martinez convictions should be reversed first of all the new albums would have had a domino effect on purpose because credibility rudders to charge him and the current american performance and those crimes to involve the only non gang related victims who are the government off of these crimes are far worse than in the uk the other charges the indictment after all it was the american reforms murders that the government pointed to as justification for imposing the death penalty against mr martinez if this doesn't send a message to the jurors these crimes are far more heinous than those others i don't know what does therefore because the government's really may please the court down or present the united states of america in this case the defendant alleges that the that he's entitled to new trial based upon the government's inadvertent failure to turn over cell site records that show his whereabouts on the day of required under brady then they could not put the case in such a different light as to undermine confidence in the verdict but what about opposing counsel that the government had to change its theory of the case after new cell phone record clear what we're describing is a theory that somehow did say that you can infer based upon the old cell site records because there was a huge gap between the crime of the murders before and after that it could have been possible to defend it was around the area you know that's not the case but under either theory because of what the overall theory of the it is in the case of mr martinez his involvement namely that he's the victim and the one who's we're going this murder where he is a relationship the american performance was not a particularly big deal he's the shot caller the government was not alleging that he was the shooter obviously if that was the allegation and we can show that he wasn't there a time of the murders that's that's great that's a clear that's a clear problem i've heard so much quite clear that the government could not have made the argument that they didn't and they had those records in evidence is that not true that that is true on or it could have made a better argument which is the argument that judge carter heard and when he ruled that this evidence was not material namely that the defendant was camped out an american performance and this is why the evidence was helpful and as part of thought found the evidence was helpful that's twenty five minutes before the murders that the defendant had discussed in the telephone near hour forty minutes earlier  about ready to be sitting around with triple homicide occurred so let me just bring it to the next point which is the three things that have to be found for great violation and the united states supreme court in strickler versus green set up this test clearly and i think that's material and let me focus in on the materiality point because that's generally what the defense is talking about here and i think that's the the argument and the one the argument is that the government's court case rested on master visco that's not true at all and fact produced i'm not denying the fact he was an important witness he was the defendant's closest confidant he was a mexican mafia member himself who flipped and testified against the defendant but the star in this case really insofar as the monopole murders were concerned and the other murders were concerned three one cases including two long cases involving that you understood and explain in detail in his rulings how all of these records fit into everything else but let me go through the timeline and if you're nervous i'm only going to mention maxwell visco because he was a participant in the wiretap calls and this is no involved here this is just the fact the facts show that three thirty eight pm on the afternoon of the murder the murder occurs at five fifteen three thirty eight pm three thirty eight pm the defendant this beautiful was a mexican mafia member  robert mercado and daniel bravo are on the move and they're going to converge around where the one with the r lands a minute later there's an intercepted call and that that by the way it  and he tells them that rich turns out so we know who the one with the ark is it's rich rich popped up in the neighborhood and they got to get it ready to go after all that's our one one one two two one for that shop richard serrano rich the one with the artist dad along with two other people and got one who is going to converge around the area the one who is going to go looking for the one with the r is one hundred yards away he has a loaded gun on him identified is identified as the one going after the one with the r is one hundred yards away and what the suspect records show is that at least thirty nine pm especially twenty five m that could be made counsel certainly well that's right here and i think that i think that's i think i think that's fair obviously but when you combine it with the other evidence in the cat you have the phone call setting up the murder you have the defendant crew member that particular case the evidence that was turned over basically destroyed that witness in the course unless when you look at the her face there still is not a reasonable probability that the case would've been looked in through a different talk about the one with the are you talking about is rich an hour forty minutes he ends up dead and when your crew members who's going to look for the one with the r it's pretty clear what that phone calls and you really can't put any spin on that subject but nonetheless the year before the motion from the trial was heard but there clearly was a possibility since there was a gap in time between four thirteen and four twenty eight for instance for martinez to have met with or he's going discuss what was going to happen it wasn't a long meeting he said we're going a one file they were misfiled as i explained of course this is inexcusable and i don't debate that fact but there were there were well over fifty thousand pages of discovery in this matter phone records from a lot of people here so it's  months after the murders occurred after the murders occurred the best they could this identity was sketch of a guy in a hood like the unabomber there's no evidence that they would have been able to pick out anybody guys came into the shop two guys games from start shooting at them they didn't sit there and take notice of what was going on they both they all ran for their lives and three unfortunately were caught and were killed in that shot that day so these these claims really have no merit when you look to the fatality of the records in the case and in addition to point out the helpfulness of these records which is another thing th right next to where the shop was so again that's another example of how these records are helpful and not hurtful and my remaining two and a half minutes i want to press the last line and ask that these records somehow extract the whole trial and the government  the nine volumes of experts who i sort of record them in their opening group and pretty much in their reply brief two don't really bother to talk at all about the other crimes that he was charged with you start with twenty five different crimes and the majority them thirteen of them have either nothing to do with the montevallo murders that all true are for crimes like the rico crime that has so many racketeering acts on related the amount of murders that they could stand on their own regardless of what happened to them on a are actually a very different ways of looking at then i think when you look at them you're going to see that they're going to make no sense whatsoever unless you have for the supposed testimony explaining them and that and that's why for bistro is the key witness here if the court resists and and believes that the government thinks it will believe that you can look purely at these combinations in determined that some people are talking about killing written serrano and going in the american performance with guns blazing then tha given how the government described the daily activities of the mexican mafia violent acts were not unusual looking for people who they thought had done them wrong is not unusual shootings clear as a bell everything to risk is that is true why did five other men get acquitted in that second trial for the same evidence clearly it's not that strong mr gotto he's here with his that robert was part of the conspiracy to take down the people in american forms that they why wasn't he a quick when dick did i think that's because the government's case is and isn't as strong as you just and given