the polygraph evidence which after all was exculpatory not inculpatory in nature did not in the eyes of the jury exculpate the defendant who was offering it how can you assert prejudice on the part of others about whom the polygraph had no basis they didn't believe but they didn't they they gave no credence to the polygraph offered by the   when we look at this question of jointure and and severance we've said as a general matter and the rules say as a general matter defendants tried together in the second security or for a variety of reason to be tried to gather there are exceptions and we've identified four circumstance in which would make sense to do that one that is to say with the severance may be required in order to address the problem of potential prejudice and we've identified for the first is where the defendants rely and mutually antagonistic because we don't have that jones says i'll testify for smith but i'm not going to do it in the same trial we don't have that right third where inculpatory evidence will be admitted against one defendant that is not from stuff that's more culpable as to were relates only to one fellow but not the other but so this is most unusual i i was unable to find a single case where the evidence being offered by one defendant was purely exculpatory in nature and that that would yield a claim of real prejudice in the case is there anything that and i didn't see it in the breeze but maybe i missed it circa any case out there that's sort of like this where the evidence is purely exculpatory evidence and you say the very is that there's a risk if you have eight defendants and lord knows we used to have eighteen in miami when we were trying these could you try to eighteen times the risk of only inconsistent verdicts from multiple jurors was very great and jones would wind up convict and on the same corpus of evidence smith would be utterly acquitted and there was just the sense that powerful reason that like minded defendants are to be treated in some corporal sense in a like minded way so it wasn't just for the convenience of the court because i don't find that a terribly compelling reason test me as you in the instructions of the court gave the judge not tell the jury that you've got to take each defendant singularly and alone and consider the evidence as to that defendant and the fact that you may find another defendant guilty or not me is the state that your brother has just outlined that the effect was prejudicial but other than that whether the court was going to allow it in as to one defendant or not singularly concerned that the defendant and the government you follow what i'm saying you could have gotten up at the hearing could you and have said judge the foundation is insufficient for this polygamy for well i wouldn't have any standing or stake in challenging the bona fides of the polygamy for which you as opposed to saying what he just said which is if you let it in it's going to have a spillover prejudicial effect on us i understand that argument but i don't understand where you have a stake in or a right to be present at a hearing where he simply saying with risk collateral hearing before the trial whether this evidence can come in or not other than to say if you let it in it's going to affect us in this way that way or the other way as opposed to it's admissible or it's inadmissible with respect to the proponent if you follow what i'm asking we've been allowed to park what would be a novel type of factual hearing we would have been able to cross examine the expert who basically provided testimony that convinced the trial judge that this evidence this junk science was a first of say you know science but the united states court of appeals for the circuit has said many years ago that under certain circumstances polygraph evidence may be admissible it's limited there are certain conditions etc you may characterize it as junk but the court of appeals does not agree with that characterization and the circumstances in this case is based on my opinion so the prejudicial factor that the judge was considering she did not have the benefit of our argument in being able to elicit expert testimony first of all the hearing that was conducted the polygamy for that testified at trial who conducted the polygram was not the witness that testified at the hearing you think you had standing to say at that hearing in opposition to the position of the codefendant who was the proponent of the polygraph evidence don't let it in because the political for is no good the foundation is insufficient  a routine hearing sure but this was no routine hearing this was a hearing on a novel issue of allowing a polygraph for one defendant and not the others and the three others had no say at least let us say at least invite us i mean  into the hearing we weren't invited we were notified when the trial went forward and the political for was called by the codefendant did the court bar you from cross examining the police were it was not the witness that testified a opposed to detailing how or where for why but holding that aside we you barred in any way from confronting and cross examining at trial not legally but stripped down i'm not i understand the obviously no i understand why you might choose not to but that wasn't my question my question is if you chose to speak and inquire the court you said mutually and to stick and taking and taking this to defense well we did have to some extent what turned into an antagonistic defense because mr and gulo scoundrel had told the jury from the beginning i'm going to prove to you that my client is not guilty this polygraph i look at this polygraph as essential a manufactured affirmative defense it's not simply as the government calls it potentially rehabilitative evidence no it's argument as so very simply raise your hand if you're not here i wasn't there i wasn't i did no no no but the lamb knew by the time you got to trial and at the time when the police were for was offered just bear with my when you knew at that point that there was a hearing absolutely did you object to the trial judge at that time and say in words of substance judge order not to allow the political for her to testify because a we had a right to be present at this pretrial hearing we have a stake in it and we want to be able to win tara gate the political refer before you ruled on admissibility or severance do you say any of that to the judge specifically no but i think that are generally you didn't see any argument you corporator in our continuing request case now also what's very important is we were led to believe that the witness that testified at the hearing who is a polygraph expert he did not do the polygraph he was the mentor of the  supposed to testify but due to numerous pressures of the trial multiple defense or whatnot he never was allowed to testify and the public or for who conducted the polygram was put under enormous restrictions that would bring me to the fact that this evidence being inculpatory i think this evidence was not in kopel true of the polygraph i think that evidence that was designed there was i will a decided designed it to be exculpatory it was a putting somebody out to hur but in effect your argument is but it hurt us it hurt us it hurt him quite frankly because and i think he was prejudiced let me ask that question so limited we've gone over the time let me just ask it in that beyond the argument of prejudicial spillover which he has well articulated is there something else or different that you're trying to tell us that are missing i think the dynamics of the polygraph and the dancing around how we were going to do it how it was going to be limited except overall from a procedural standpoint limited prejudice i think it's i think it's the it's the totality but it's prejudice that you're that you're complaining about here and confrontation never i never got to confront the witnesses that convince the judge that this wasn't going to  and put up to force the irony is it meant nothing to this jury didn't help the proponent i understand i'm just saying it was never the less it would have hurt you anyway even though they didn't believe it for a minute well it's in the trial court which we were talking about the severance for the polygraph right is that which are you know we made a motion i thought there was a motion that was made tell me if i'm wrong about this but by mr lopez to mr acosta did not join that motion  did anyone from the defendant's side the three non proponents of the program evidence ask the judge for any instruction and he limiting instruction this is evidence of bears jones not on the other three and you can considered any way shape matter and form because if you did i may have missed it but at the time someone says judge you give us an instruction a limiting instruction yeah when they came in did somebody say listen we object was we there's a spillover effect but as a fallback position we want a limiting instruction i don't think so either i the government denied mr angry want to say anything about severance i suppose but i'd be happy to answer any questions about that i'm actually going to join so let me ask you a question on severance they weren't present at the hearing today have isn't sufficiently competent or qualified in the area of expertise and therefore is open is no good or demands to junk science and that could they anyone get up and challenge and i've been in either co defendants a judge don't let this in because the witness is no good he's otherwise not competent or his opinion isn't well grounded in the science no withholding of important discovery and the prosecution's finishing angle was cross examination by making an unfounded inflammatory accusation that he was the boss of this huge smuggling venture and i believe that these errors prejudiced and google to the extent that they completely overwhelmed any value of the polygraph first the government a withheld in one nine hundred ninety eight homeland security report from the defense until after mr anglo chose to testify and did testify on direct during cross examination the prosecutor displayed a report transfers of bales of cocaine shipped from seventeen years earlier but no your client didn't and i'm sorry your client didn't answer the question there was an objection raised before the answer came out that's correct however  my position is that that was immaterial because the prosecutor did this in such in front of the jury reading from this report that was withheld that was clear that the judge to the jury it appeared that the government had this information i objected we asked for sidebar and then she kept out any further comments from that report but i think the damage was done because in this sort of situation mr and gulo had point you save may we approach the sidebar the judge says sure and at that point the question came up of what was disclosed and what wasn't in discovery and the but this particular question was elicited this question was not disclosed so the whole thing boiled down to one question never answered sustain that i have that right that's the essence of what we're talking about yes your honor and the government doesn't actually the job of trying to minimize the impact and i'm i'm not saying it's not significant or it is i just want to know what it is that is totally ignored the post trial expert a very qualified expert that i submitted a declaration you say ignored that came in the right it wasn't barred from receipt the judge just didn't give it much weight th government never responded to the expert that completely debunked this idea that no but my question is if it's came into evidence if yes it was received by the court thank you thank you very much ma'am please the court karen hartman for the united states your honors i'm going to go over a couple of points for a moment about the severance motion your honor had asked about limiting instructions there was not a limitation requested and in that i mean that the lawyers could decide well we don't want to call any more attention you know train wreck because it's about to happen for us right it could your honor but that could have been done beforehand as well and it could have been done by motion and it to the court problem while it may not have been raised right on the front and by the time we got into the hurly burly of the trial they were objecting absolutely honest they were all saying we want to be severed from the  defender offering the polygraph or i don't know that the third defendant did your honor i was pointing out that well that's what i'm asking is that an issue or isn't that an issue if it's not your cross because it was not argued this way and we did not respond to it and i don't have a cite to say that they raised it so i can't speak to whether this would be plainer on that defendant's part i would assume that somewhere in the record they would be able to provide your honor with an a and i was trying to point out that because of and in case there were several of the statements made beyond the original motion this was an issue that was fought out before trial most of these issues in fact all these issues stated in opening statement oral argument were thoroughly filed before trial and their orders  leaves me feeling bad about the conviction the convictions first of all i mean it's a close case it goes to trial the first time there's a mistrial so the government's on notice that there's  defendant had a right to rely on that just provided discovery in making their transcript i know this is a long question but you've got twenty minutes almost so and then that the second concern is this low guard question and i know you know  the argument about that as well the witness never answered the question but i mean the way i read the transcript in the question is asked by the assistant united states  question ok and then third and i really i'm going to let you talk and then this whole display of reading the agent's report in the cross examination of  and under the guise of well this is you know total i mean we the completeness doctrine when it when it really was a mr cross by maryland's testimony at all did not cause prejudicial error by itself i think as part of this cumulative a or or certainly as your honor so then we're down to something that did not cause error on its own and we have two more questions that your honor is worried about the district court's handling of any violation of its r sixteen order concerning one piece of evidence and then the single question questions about the load guard address those as far as a real sixteen order your honor there certainly was evidence given and it's not disputed that defense counsel had in their hands the evidence leading to every question except throwing a line but i have the report that you have the night to your honor we don't have the report either because it wasn't put into the record at any point so it's very difficult for me to respond which is you're not saying i didn't have a trial or you i was saying we had the tax printout that said the same thing yeah on the written hand it in long but we don't have it today goods and put it in evidence well we weren't the one objecting your honor and the court took a look at that and said anything that was not already they were left to object that well they certainly knew that there could have been a text report because they were discussing that in their pipe raif so again we are talking about though one pacific question which was not answered and the district court outside bar had to throw a sidebar about this she apparently looked at the reports because she said you can ask anything that's not on there and in the record is exactly what was on what they did have so if we're talking about a real sixteen violation the court's or an order we are again talking about one specific piece of information which is apparently in addition to the twenty two kalos of cocaine which everybody knew about and was asking about better to the other side but if they knew about the arrest they knew about the amount what they didn't know about was throwing lines how is it that that would have a fair trial strategy i mean i think this has to be a trial strategy objection because it's not an objection to an answer that was never that would be the motions about this at the end despite the fact that one of the hearings on that motion the district court specifically turned to defense counsel you need to tread lightly with this information the prosecutor has stated he will not bring it up in case and my for a for b ruling is based on that stipulation i'm not making a ruling as to impeachment or any other use tread lightly so despite all of those warnings and  decision to put that if on the stand and to ask specific questions not only about the one thousand nine hundred eight incident but also did you ever hear of cocaine on that boat did you ever see despite all of those decisions the argument would now your honor in response to the low guard question we would point out it in our briefs that we are not talking about six b or six o eight character we are not talking about anything that we introduced that was not in the record what we are talking about is a question for the jury that drew and inference based on evidence that was already before that we had in the record of course the statements about you don't know who i am we had in the record already oversight if at all and i'm sorry o the third was the issue of order and that's an extremely difficult to to address your honor because it's very much a moving target although there are twenty pages of transcript devoted to why the agent should not be able to hold the report or ask the interpreter read their important spanish first there are only i believe three pieces that will information or evidence put before the jury based on that again the district court did a very thorough job of addressing all the objects which were moving objections most of the objections were that this is improper leading or that this could not be used at all and the district  the original ruling on completeness grounds from what she had seen in the courtroom she said you've used this report up here and i'm going to allow them to use it as well let me ask you this were were any of those three did any of those three pieces of evidence or questions occur at the first trial oh your honor all of these questions occurred at the first trial and that was precisely defense counsel strategy that's why this was so difficult when going into in consultant how can they be making the argument that at the second trial they didn't know about the report if you had introduced it at the first trial i'm sorry i was responding about to the agent's report that they used your honor and january twenty second but speaking of a different  tell me that the severance which is the central argument three of these your honor there is no logical connection between the request for a severance and any prejudice as your honor pointed out any speculation or excuse me as i was pointing out in response to your honor's question any speculation on what the jury might or might not do with this polygraph evidence taken care of by the standard instructions in the case which were in this case number one that it would be individualized assessment of the evidence number two any statement that came in would be used only against the state her and then number three of course the instruction that should anyone not decide to take the stand that cannot be used against them in any way or even can the jury had three instructions that prevented them it made it not perhaps a bill but improper to consider any of this polygraph evidence against anyone else number two this of course was not evidence that we introduced it was rehabilitative opinion character evidence this court in its on bank decision and peachey knowna specifically stated that that was the use that  h evidence could be used for and the district court made a proper pitch you know in order here limiting the use of this so all that this evidence was going to be used for and all that it could be used for under law was opinion characte question did anyone force you to take the test answer through interpreter no sir question did you tell the man who gave you the test pretty much the same story you told here answer through interpreter yes or question before you took the test we told about the qualifications of the man who was going to give you the test answer through interpreter yes or question and did you have any did you have any trouble answering the questions answer no sir did you pass the test answer i believe so let me but my question beyond the defendant being asked then the polyp political for himself what was he asked and what did he say he was asked a series of questions there was no cross examination for that i'm not how a polygraph is given the science behind a polygraph exactly what the physical setup was of the room and a video was introduced of how to take a polygraph not of mr anglo but what was asked specifically about the results of the polygraph evidence that was administered to this defendant one moment your honor because i don't believe there was anything asked of substance because of the court's order so there was no opinion offered by the police were for the only opinion came from the defendant that's what i'm checking your honor there was a series of questions your honor asking about whether he employed countermeasures or whether he was truthful there were no questions and i'm sorry if i'm misunderstanding your honour's question i'm talking about the political for he was called by the defendant as a rehabilitat witness was he asked in words or substance one digibox the guy to what did you learn what were the results of the polygraph yes your honor on page one thirty seven et he offer and i expert opinion about the results of the polygraph administered he says he was truthful on the polygraph yes your honor does he say what questions he was asked and what manner he was truthful no so he's just after asked one question about the proceeds of his test was he truthful when he answered your questions answer yes was at the beginning the middle and the end of the answer the  opinion yes your honor because the court other than having said here is what a polygraph involves and here is the metric the methodology and the regime i'm just asking about the opening in offered about an i simply want to know why don't you nion this expert gave about the defendant's truthfulness what did he tell the jury yes he was truthful generally or did he say i asked him a question a b c d e f and g and his answer was truthful as to each of a through g no for the latter he did not give any particular questions or particular answers or the courts tell us why you don't think there is prejudice that inheres in this even accepting that the guy didn't say the process for the fact that the defendant was willing to be box was polygraphed and the politico first says he's telling the truth does that leads to an inference that these other folks who are offering no polygraph really had something to hide and so they were afraid of a political for and therefore the jury was naturally left to in far from their sirens their culpability that's th argument you're on to go through three inferential steps each of which was fide by the or countered by the jury take me through the three steps they would have to say that the jury would infer that this person could have gotten on the stand have to infer that they reason that they did not take the stand was because they failed the polygraph test they would have to infer that own they would have to infer that they failed the polygraph and apparently they would have to infer only as much as was in evidence from the opinion the character opinion which was that they were not truthful during the polygraph test as opposed to any party so they would have to infer all of that in order for them to there to be any problem with mr engler using the opinion character of his truthfulness during the test to rehabilitate himself or corroborate himself as a peer that they did on direct examination as to his credibility your honor and again we'd point out the district court did address is especially the agent's reply which i did not hear an opening but there are many things that could be said about their report were said about that report and that were resolved by the court again although there was much discussion over it the only things that came in were consistent statements with what that witness had already testified to and a single statement or a single set of statements that he had seen mr anglo get there were three other witnesses who said that i said something to that effect who said that he had the twenty five million that he talked to mr burrell on the boat about twenty five men so that was extremely redundant nineteen essential makes that argument for us where they say in quote no defendant other than anglo opted to take the polygraph or testify essentially in suing that the complaint we're making is our of our own fabrication because our clients didn't take a polygraph and our clients didn't testify a sensually saying that suggesting that the clients would have cured this problem if they would have taken a tell a polygraph and they would have testified essential shifting the burden and basically stripping them of their fifth amendment rights so that i think these three inferences are instantaneous and they're so bold that clearly a  jury is going to make those those inferences in this case this is a unique situation and you think the danger of prejudice is not obviated in any way by virtue of the fact that they obviously disbelieve the defendant and exculpatory evidence came to nothing with respect to the proponent i do think that has no bearing on whether or not the other three were prejudiced i think the polygraph evidence was so limited and the prosecutorial misconduct was so prevalent what was the misconduct the improper cross examination by mr reddy ok the court had  asked give some other specific examples t c i agree with the other the way this very unusual polygraph evidence because usually when you put a blip on the stand he will say here's the regime here's what we do here's the foundation here's what we asked a b c the and the answers were truthful untruthful or i can't tell and that would be a this was odd because all he does here is he said we asked a series of questions we got a series of answers and he was truthful period no explication of what where for why or how which really undermines if i was a proponent of the bill you bet i'd have asked in detail a through z and had him say yeah he was telling the truth about this he told the truth about this telling the but that's their strategy that's for them to proceed but all i'm saying is so it undermines the theory of prejudice it seems to me that the political for was shooting with a mouse rather than a cannon no i think because maybe i've missed that and it might have had to have the limiting of the factor of the polygraph essentially reduced the polygraph evidence to very poor evidence and a poor attempt at the defendant to deceive the jury therefore the jury looks at a missing this is the best you've got this guy who you put up to this test that he passed to say he's not they're not  was a state the issue being severance no severance wrestle could tell me where you preserve it that would be helpful to me on several occasions i'm sorry i cannot give you the sighting would have been in the course of the trial itself from the tryout the trial when the trial you were preserved prior to that evidence being tested the prior to mr engle is testimony to the polygraph evidence it was preserve the motions we're joined we asked for severance we asked  the evidence altogether we asked for a special instruction limiting the jury specifically as to the details of the polygraph toward our other clients those were all rejected i apologize i can't give you a cite because i have a right to think but there's not a i was cross examining him wouldn't have been better if you'd recorded it so we could know what was said because the interview was done in spanish and one of the agents acted as an interpreter but he went back and change so that's my question moving forward you know i could see a certain context where this type of evidence might be valuable but really it invades the providence of the the jury supposed to be the fact finder and they're supposed to tell who's telling  can you help me with the line throwing question and why is that so prejudicial i think i'm just not understanding yes hi it is if you knew about the arrest you knew about five thousand pounds of cocaine why it is that this one additional  so it was a very close call to call him i had to do that to get the polygraph in at all but and even much closer call as to whether to touch on this one nine hundred ninety eight incident where he was detained in the bahamas but you figured they would raise it even if it meant i thought right some didn't matter i mean it would be sound practice to bring it out yourself rather than have them do it but either way they were going to at least probe once you put him in the witness and were  think i thought that the judge the way she sounded she might allow it and after much discussion with very senior attorneys who knew a prosecutor of this this whole situation it was a close call however in were they on the ship who had access to him was there some legit they could use just help me procedurally comparing trial one with trial two before the mistrial was declared in the first was in jeopardy of having to answer all these questions about line throwing guns for at sea transfers of bales of cocaine is what the prosecutor read to the jury from this report that then i succeeded in keeping  keeping out of evidence through the sidebar that was obvious to the jury also that completely undercut his his defense of lack of knowledge and it's i would never have touched on that question itself include that i was on my way up to my feet but i didn't on the record object to the quantity question that came in right before that those both of those the only reason cases support that the closest one is young from two thousand and fourteen that i cite my brief it had to be direct contradiction in other words he had to have something like a witness who would testify that my client needed admission i knew there was drugs on that sh hundred four b test for relevance and a four zero three ten which you could not pass either one of the statements so in addition to the throwing question your also time out the question that included the reference to the thirty one bales that were going to be delivered in the august trip you you know the question to your client you were there to verify for the drug owners that those bales were delivered correct you object th prosecutor immediately says no further questions your honor before the court has to rule on your objection right and i maintain there was no good faith basis for that question which is required in the case law and the if you all the cases that anglo cites in his brief give examples of what other courses have found to be good faith basis and bottom line is what they needed for a good faith basis for that was some witness somewhere even off ex parte saying quantity has you had already deuced evidence is the quantity and now it's no the quantity had not been introduced and i maintain that that under four i'm sorry you knew about the quantity right i'm think you knew about it and you're right i knew about it on the handwritten list but if i may continue please or you're answering my questions are aware that it's still subject according to the cases to a four hundred four b relevance analysis and for all three prejudice in s and it couldn't it's not directly on point and contradictory so it couldn't pass either one of those tests thank you very much counsel may just make one final parting comment very briefly please just your honor that we have a great justice system that works most of the time and