trial counsel as well as representing him on this appeal i have ten minutes this morning what i'd like to do is first of all reserve two minutes for rebuttal if the court's questioning permits that secondly let me make clear that the two issues that i intend to talk about this morning of the joint issues are both the essentially the importation issues that is the sufficiency of the evidence that the defendants knew that the cocaine they were involved with was going to united states and also the question of the sufficiency of the jury instructions i do want to make one thing clear though because as perhaps the court has gleaned from reading the briefs the factual allegations against mr martinez  mr quavers were quite different they operated in entirely different parts of colombia and they had no direct relationship with each other so if you do have questions that pertain to the factual matters against mr quinn has it's our understanding that mr ritter read it will take some of his time to address those questions as far as the two issues and like to talk about i'm going to start if you permit with the issue of the instruction is quite frankly that has a much much more favorable standard review for the appellants and frankly this is inexplicable to me that fact that the defendants had to have personal knowledge or the intent to import the cocaine in the it states government relies on in the context of the sufficiency of the evidence is precisely a case where there was an objection to the instructions but it was harmless in part because the judge in that case gave the same type of instruction we requested  the trial judge in this case declined to give that instruction i simply cannot understand the importance yes that the defendants had to have the personal knowledge or the personal intent that the drugs with which they in the conspiracy they were involved with was going to united states i mean with the children's case where that it's a court actually instructed on conspiracy as a general intent crime and unless we found harmless error in the destruction well i don't i'm not i don't have the facts of that case in my fingertips mark but i will say that in this particular case we're talking about an element of the offense a particular mens rea a and because of the way the judge continued the instruction it actually led the jury away from this conclusion when the judge that instructed the jury that the defendants need not have agreed to all the details they need not have been fully informed of all the details they need not know the full extent of the conspiracy or all the actions of its members of they didn't have to know they were violating any particular law they only had to be aware generally  more in the united states and they had to intentionally join in that agreement yes but well i convey what you wanted to convey no no because because the court sort of divided this into sort of two questions for the jury and one what was the conspiracy and we agree that it least initially the judge made it clear that the objective of the conspiracy was the importation of cocaine in the united states now part of the problem is as he continued to discuss that he used what the government calls shorthand and then just continued to refer to unlawful or criminal or illegal conduct without without continually reiterating that importation of that itself would be a problem if they to intention they had to intentionally join the agreement to import five kilograms are in the lead right now but that but that doesn't that doesn't say what they have to know in particular in other words if they intentionally join the conspiracy as helping fark train traffic drugs produce them or and the case of mr mccain has a guest transport them within colombia or within colombia to venezuela they might find that they in fact joined a larger conspiracy but it doesn't say that they had to know all the details and i suggest that one of the jews that's not that's not i'm there so they didn't have to know correct only in the context here where you're saying that yes or adversely on her that there is no question in our mind that had the judge given the instruction we asked or so the jurors were told unequivocally they had to find this particular state of mind then yes all these other qualifications would have made a difference because it would have laid it out simply for the jury but the government's asking you instead to say well we read between the lines and sure we saw lots of things that can be contradictory but but surely the jury m don't believe the government is disputing that i asked for the instruction on men's rights here's what he said that what this is that those twenty nine thirty if you find that the government has not proven beyond a reasonable doubt that the defendant of well i i respectfully suggest it's not complete because because what i'm going to keep going back to is joining the conspiracy is one thing and conspiracy law makes it clear that you can join a conspiracy on a pretty  don't have to know all the details and my question is that passage appears five pages earlier seventeen twenty five the passage you just cited you know the one the one that you're complaining of right thank you notes and all the details but as it goes on on that completes the section of the instructions it says that if you don't find beyond a reasonable doubt that they have the knowledge or or intent then you must acquit well with all respect i guess  i don't read it personally that way i read it with the break or you could write them twenty thirty right but i guess the point i'm trying to make is that it's the joining of the conspiracy that's the issue and they could find a jury could find not realizing what the particular man israel was it that they join the conspiracy and indeed there were conspirators who knew where the drugs were going to the united states but they didn't know and my question i posit in the brief and i did i respectfully suggest the government never answered it is what would make it unreasonable for a juror to believe that these defendants in their respective fronts joined the conspiracy  but water not aware of where the drugs were going and therefore they didn't have that particular mens rea on that particular element offense even though they were otherwise perfectly aware of their on lawful con  trial in this case just picking up as the mr gilbert indicated the sufficiency of the evidence just a brief mention for my client and if i may if i could have two minutes worth of rebuttal time with the permission of the court with mr quinn of us there were four witnesses really that were against him there were two lab workers lab workers from the cocaine lab that were presented by the  government there was also a cooperating witness that was the witness that accepted the satellite phone phones that were discussed that are discussed in the title three issue that we have and then also a another gorilla that visited the lab where mr way of us was supposed to have operated and conducted the business  it is those four witnesses that are the point of the government's case against him absent those four witnesses there is pretty much nothing against  specifically related to intent to important to the united states or tying to a cocaine lab i don't i don't want to just sweep away those four witnesses but three of those witnesses were what were called colombian those which were witnesses that were previously guerillas captured or submitted themselves to the colombian army and then as part of that they were debriefed they were really integrated into colombian society however they were still under the watchful eye of the colombian government and as we note in our argument related to the confrontation issue they were actually tethered with a electronic monitor  in her testimony testified that she did not think that she was subject to perjury here in the united states so while there was a level of agreement with them  the colombian government they felt that they well i don't want to put words there there was not that same type of the united states and the prosecutors it is it sounds i mean are you conceding there credibility arguments which a jury certainly could have credited but apparently did not come having trouble figuring out what i don't think you are you saying anything to us as to credibility that the jury you know didn't know about or could have been informed about no i put it in the most conservative fashion because what they ended up saying was barely linking mr quaver us to that lab let alone knowledge of importation to the united states because it was maria santiago the cook who said that she saw him there it was her brother who said he saw him there it wasn't  he was he was running the place right he well he was running the lab even the owner or at least supervisor of this lab and it seems like all the lower levels are a lot of the lower level folks knew where it was intended and there's evidence that higher ups in the knew where they wanted to get this and they're making tons and tons and tons and all i think all we need to know is whether a reasonable jury could have found that five kilograms or more of that of those tons and tons of cocaine that folks expected to go to united states and had financial incentives to send to the united states was intended to go to the united states but the colombian guerrillas who testified about his presence at that not the workers the one that would travel to identified another person a person by the name of kuta translated as per s who was the one that was running that lab and the cocoa operator who accepted the satellite  phones the crop aeration between the witnesses wasn't there so while there was this structure of there was a lab and we think that this person is located is tied to that lab each of those witnesses contradicted the presence of the identification of our client as opposed to others who may have been operating or working in that lab their believability or at least the jury's analysis of whether or not they have a motive to say something other than the truth while i have some additional time i want to turn to the prosecut issue and that is the closing statement that was made by the prosecutors in this case this court has addressed and heard other cases dealing with closing arguments specifically and i'm saying that because some of the opinions and some of the cases deal with statements made by prosecutors improper statements but sometimes at the at the beginning of the case in this case the case where there were similar issues but our for two is the more gray one case but that case gives us the elements that we should look to when we have such a closing that we think is out of bounds we look to the closeness of the case which is offshoot of our sufficiency argument but the central idea of the issue that was discussed here and what was happening here we would argue is that there was a direct attack on defense counsel there was a direct attack on the defense but that attack rather than going towards the evidence spilled over into the world of the defense council we begin with the reference to writing i'm sorry to interrupt and you have a set of question and that is the objection to this argument wasn't immediately after a break is that correct yes do you know that it seems like there's an unsettled law  the circuits as to whether that counts as officially preserved when we apply plane air since it wasn't right at the time and then there was a break and then you came back and so the judge couldn't immediately corrected right then and there do you have i happen i don't know i met no i don't know that i i refer back to the requests that's made at the time i mean it's you know at being trial can so i can say it was a strategic decision at that time because certainly things are being said in and jurors are attentive in and you think well wait a minute i don't want to pop up and say foul foul foul and have the jurors look at us as if we're we're crying wolf  no your honor i do not know i do not know that answer but we do have the situation that more describes and that is language which inflames passion which refers to a hometown of one of the prosecutors and this is what ends up in my streets that's not evidence in the case places attempts to place the jurors in the shoes of the the victims here the witnesses here and eight separate instances that we were able to count where prosecutors stated i don't buy it and maybe you shouldn't buy it and i don't think that's right and as more indicated anything that goes beyond a fact based argument anything that goes to something is not supported by the evidence or inflames is something that needs to be examined our concern with this argument is a concern that we've had with other cases there there is a progression of these arguments the style of argument that we feel needs to be at the very least identified corrected in this case we feel that it took what was a weak government case and brought it into the shoes of the jury who was feeling it thinking about it on their streets just as the prosecutor argued that it was on his street in his hometown and that's just not appropriate when you say this was a direct attack on defense counsel and what you are referring to is the government lawyers statement that i don't buy it or i don't agree with that is that when you're it don't think there could be viewed and sifting the evidence doesn't support it or well i like to think of what should be said and what should have been said is the evidence it was contradict the evidence the weight of the evidence was not as much as you as as much as the defense argued there is other evidence which shows that this was not correct i don't buy it and you shouldn't buy it because there you shouldn't buy it also is look i'm the governing council i'm here protecting you from these colombian guerrillas and i don't think it's good so maybe you should listen to me because i carry the weight of the u s government when i'm argu and that was absolutely nothing in this case and again distinction with some of the other cases this was at the very end right before they walked back into the jury room thank you my name is michael levy and i represent the government on this appeal i think i will just follow the order that my adversaries stand and address the same issues in that same order if i can start with the with the jury instruction it was suggested that that was the place to start because the standard review is more favorable to the defense on that that is not true for the jury instruction what we're talking about here is a choice of language as if you  proposed jury instruction i believe we did although i'm not why it would have certainly would have clarified this is the you know complicated stuff for a jury to navigate through and you have to admit that the language added anything your honor i think if you if you look through the charge and that a ground have objections it is a basis for not revising the charge and i suppose i should be more certain that we did object in that it wasn't just that the judge rejected i'm i don't want to guess and i'm certainly i'm not positive but i think an object and action has been is another the one that they asked for it's not like something out of left field it's been used by just a court and other cases precisely to add the clarity and appoint the jury to the sort of precision of a two part findings and is is what judge ginsburg was was quoting earlier at i think it's seventeen twenty nine that the jury was told point blank what they did indeed not need to find in order to convict and i would suggest that is just the very end of a series of instructions that if anything made the importation were repetitive with respect to how critical the importation element was in the march you know this case this court found that one of the reasons the instruction was was find in that case was because i think it was th five or six times the court had talked about importation knowledge of importation in the united states i went back and counted x and one hundred twenty nine the problem is that right at the top of that page you've got a couple of the what is necessary as though the worries and stuff is all it's all five pages early you've got it right there back to back and then we don't think don't find guilty we say if you find this intent you should find them guilty it actually does say don't find guilty if you keep going to the next  however you find that they have not proven beyond a reasonable doubt and declared then given what's said on the top of page seven hundred twenty nine of the year on seventeen thirty that the conspiracy has to have the intent or that they had to have been i mean i think that their argument is is i would argue it's perfectly clear that they had to have the intent first of all and seventeen twenty nine and seventeen thirty i think i think it's abundantly clear i think if you look just at that it couldn't be clearer that they have to have had the intent and then even the part that your honor was just quoting which talks about the knowledge of its unlawful purposes and with an intent to aid in the incompetence meant of its unlawful objectives there had been and i counted again fifteen or twenty references depending on how one counts to the object being importation with knowledge that it would be important manufacture with knowledge that would be imported into the united states your view  conspiracy is if you go through fifteen or twenty times the district court actually says i there i think fifteen times a district court says importation knowledge of importation into the united states another five times  uses the shorthand knowledge of importation without actually following through anything into the united states but importation can only be the united states in this context then wraps it all up at seven hundred twenty nine and thirty saying exactly what was  could add one other fact that i think we didn't highlight as much as we should have in our brief the summation on this point the government in its own summation talked at first about five things that it argued were not in dispute and then said there are really only two follow and not evidence and are often not the instruction that i certainly will be arguing that another point your honor and this i do believe there are cases i don't have them at my fingertips but for the hunt for a harmlessness argument if the court were to find that the instruction were erroneous in terms of figuring out whether or not the jury could possibly have misunderstood this the government in its summation and to be clear the government's position is there is nothing wrong with these instruction they really were perfectly clear and that the defense is quibbling about the language and that was within the district courts discretion but even if there were error in terms of harm listen as the government said that there were two questions one only two that were in dispute first were all the government witnesses lying when they said that martinez vega and compare were participants in the conspiracy that doesn't have to do with this issue and the second question which is the subject of some dispute and i'm quoting and that is did the defendants know that the cocaine was coming to the united states so the government issue of the the first question encapsulated all that the government said the first question to dispute is are all of our witnesses lying when they say that these defendants were participants in the conspiracy so it's all captured in that basically did these guys do it and then question number two is did they have the appropriate knowledge so the government had carved that out and made a whole point of that it being a significant dispute it looks now close is only one  adversary was arguing a sufficiency claim that is different on behalf of mr quaid us than was presented in the brief which was the mystic wave of those that there was insufficient evidence that he was even responsible for the lab the evidence was overwhelming i think  defense counsel even conceded there were four witnesses who tied him to the lab that i think appropriately was not an argument that was even made in the brief the efficiency challenge that has been made is with respect to whether or not these two defendants knew that the drugs were or that some quantity of the drugs kilograms or more of these thousands of tons of drugs were coming to the united states but a couple points that i would just call the court's attention on that is to bear in mind that this is a conspiracy charge of course and so some of the cases that the defense relies on although they may have been conspiracy charges as well focused very much on a single load that was the case to some extent in martinez it was certainly the case in one done of the those were cases where the question was did the defendant know that a particular load was going to united states that's not the circumstance here for sufficiency in a conspiracy case like this that cover years and covered thousands of tons of cocaine where there was clear testimony that the united states was the predominant market for this cocaine and tell me if i'm wrong that struck me as a little i couldn't quite figure out how to deal with this with our light most favorable context of looking at evidence at this point when you have i'm right first of all that all the jury had to find was that of those tons and tons and tons at overwhelming statistical evidence that the this or core three sided as well do you know how one takes that in the light most favorable to the jury at this point i said to fix as opposed to you know joe look there's tons and tons and tons and some percentage to be given a mathematical breakdown to make sure that at some level there's i have a just got to get five the i'm thinking five would have gotten i have a somewhat crude analogy that i may not hold up perfectly but for for you just the statistical analysis alone leaving aside the specific damage god and witnesses but if if you and i have an agreement to flip a coin and the question is did i know the coin was going to come up heads  the answer that made a marine out be yes if we agree to flip a coin ten thousand times i know that the coin is going to come up heads that is the situation that we all have one at least once that's the situation that we have here these defendants were involved in a massive conspiracy to ship thousands of tons of cocaine knowing that the united states was a regular destination i look and figure out that  that's the structural operational fark and it's it's cocaine export business the amount of cocaine coming from home to the us the fact that us of such a prime market could everybody that was involved at the laboratory from the lowest person on up be indicted for the same offense and they would all have the same basis for knowledge i i think let me say that i'm not sure that's something that has to be decided in this case we don't differentiate anybody what would differentiate people is their level of supervision and that's something that this court in martinez found to be significant and these were all lower level workers here that actually were talking about it going to the u s certainly anybody who actually talked about it knew that it was going to the s if you were to pluck a lower level worker who worked for some brief period of time in a lab and say based purely on the statistics that short term worker for two weeks knew that it was going to the united states  could a jury with that evidence be sufficient for a jury to convict it might be again that's not the case it might not be that's not the case we have here that we have high level defendants high level participants in this conspiracy who participated for years and years and so the statistics take on a different meaning as to them but it's not just about the statistics we had individual witnesses who said you know a fact everybody knows they couldn't testify to other people's knowledge but they said it was talked about it was a normal thing to talk about the drugs going to the united states that high level the highest level fark leaders like mana hoyt gave i mean this is a general commanding his troops essentially gave the instruction that it was the policy of the fark that the drugs would go to the and the and the lab that mr quavers is charged with operating running whatever title you want to give him what i found very confusing what years were trying to cover with this indictment and conviction because there'd be one thing in the time and another thing in the jury sort of days and the jury instructions another set of dates in the new trial decisions by the district court so what what it how many years are we talking about how much what was your evidence taken lightly my family you how much was coming out each year that is that's a fair question i think we i i think i had by the week that it was in terms of how much was coming out i don't have in front of me how many years specifically we were we proved mr quavers was running that lab i think it was a thousand kilograms a week was some was the number if i remember correctly  and trying to pin down the exact years that are issue here with that be something i'm not sure if i'm going to be able to do it at the table or not would that be something i could submit after the after the argument you happy to do that i guess in the jury instructions the judge gave a timeframe didn't seem to match the indictment and then you try th system had different days yeah i mean certainly it was a broad indictment also uncovered a large number of people in a large number of fronts and it was only it was clear it was well and multiple years in a large conspiracy i'd also note as as to mister us himself there was testimony that he walked in on a conversation where there was where there was specific reference to drugs going to the united states so there was that even more specific level of detail as to him there was also the  money that american money was being used routinely in millions of dollars and that it was the only currency other than pesos that was around and i'd like to call one citation of the court's attention to the extent if you fall on this issue of what everybody knows and what a jury can infer from that this court case in u s v gucci six sixty five f third thirteen eighteen and in that case and we did infer that the case a it's an argument that that was captured i think in martinez anyways that the high level supervisor or frankly any participant can be it is reasonable to infer that that and the use of i that was taken appropriately by the jury as we submit in no instance to the prosecutor ever say i don't buy that and then move on as though the jury was supposed to take his word for it it might have been better to say we submit as opposed to i but in context i'd point out that nobody objected defense counsel certainly as they were sitting there did not and in context though it wasn't the kind of thing that the reason for not saying i is because it has the possibility of inviting the jury to take the prosecutor's word for it if there had been any whiff of that happening here defense counsel would have popped up and said that's not allowable if they didn't and that's for one thing that's what leaves the plane error of you but on top of that it tends to indicate the way that the jury in fact would have taken it the way that everybody in the room took it officially preserved i'm not sure your honor the sender i agree with you in our brief we did not argue that that's plain error review i think under take that is given in this case i think for this case given that it was the very end of the summation and then the first thing  before that the jury came back for purposes of this case i'm not sure that it's the law but we didn't argue that the standard matters very much here there was no no prejudice frankly the argument i think was fairly responsive to what the defense had done in their opening and i think we may have shorted ourselves a little bit in our brief on what it was responding to in our brief we say it was responding to this refrain by the defense that the prosecutors were from new york city it's actually more than that if you look at the full quotation the refrain from the defense in the opening was this is a case in from colombia that you shouldn't care about the defense opening was this is a case involving basically the republic of colombia colombian witnesses with the exception of very very few prosecuting the ways in this plan ways to get past that without talking about this is my hometown that's an issue  you're prosecution me saying that i think that i'm committed against the united states of america bringing math of amounts of drugs in here so on i'm sure that they've got appropriate rhetoric here so that my i think that's right your honor i think  i think the detroit part probably could have been left out i suspect it was a response to say i'm not a new york city lawyer as i've been accused of being to let the jury know that this was a new york city lawyer is a new york city lawyer from somewhere else i don't know if that if that's what he was trying to get across or not there was certainly evidence that these drugs were flooding the united states and would have encompassed american cities he drew his own as as one of the the impact would be and the district court here immediately said it was a single remark at the end of a very long trial that had focused exclusively on a drug conspiracy as had the summation and that the jury c you i promise i'm going to address that instruction judge ian for but may i have just a moment to talk about statistics because you read the statistics you have to look at or not if you have a kilogram of cocaine the united states at this time it was ninety percent likely that it came from colombia romber the statistic is if you have a kilogram of cocaine in colombia there's a fifty fifty chance it's going to the united states and then if you look at the geographical distribution i think i suggest that if there's cocaine being transported or produced in the eastern part of colombia that percentage goes up even and word of tons and tons and tons and tons and tons and produce over years and years and years and years and years and we just out of brazil majority's i but again when tons and tons and tons i don't think you have to talk as i only need five you have to talk about what cocaine martina spago or mr quavers were involved in that any rate my point is the statistics are are not looked at from the point of view of cocaine once it arrives the united states rather it's cocaine in colombia judge ginsburg with respect to the instruction at the end i think there's a couple of problems with it first of all you have to it starts off with us and that certainly is a reference i think to the language that comes before and on those pages the rest of that page seven twenty nine seven twenty eight that's where you were because it's at the beginning of the sentence you were you referred me to the the it's a very bottom of seven twenty nine that's the instruction says you know if you you should find him guilty and then the next seven thirty and you say he should find not guilty one of that is the dos and if you look at all those paragraphs before that those are all the ones that limit that narrow down what a defendant have to do to be part of a conspiracy my other is my second point would be  your lawyers know that's precisely my point because they wouldn't have known that unlawful in this case met on law from the law of the united states of america not colombia from the us is the key here now i'm saying this one of it because because the problem is that this instruction you know is you know sort of comes in there at the end it is inconsistent i suggest with everything the judge has told them immediately preceding since i with all due respect well first it's the use of this word conspired because the judge has previously broken that up and said you have to show the existence of a conspiracy and then the defendant joined the conspiracy and of course the defense means ray only applies so that second question we wouldn't dispute there was a conspiracy at least at the upper levels to distribute and to the united states  but when you're talking about conspire here i think what's happening is the judges ramming them together and i don't see anything in that that is necessarily inconsistent with the argument that the conspiracy that infinite joined was to import but that they did that was one of the details of the conspiracy defended did not know the one little and i'm sure mr writer adam one addressed this actually that instruction with respect to martinez vega is even more problematic because it talks about finding the defendant conspired to import any amount of cocaine or to manufacture any amount of cocaine and the indictment of course yes but the indictment actually for mr martinez vega you know he's not really telling them he's really have a telling them that nothing about the intent or knowledge i'm sorry but what he's saying here because mr martinez vega didn't manufacturing  visit or the manufacture and distribute in the not guilty but in what he's telling them in that in the paragraph merely before that you said referred me to and the problem is that has the knowledge element about seventeen seventeen that in the government must prove the defendant knowingly associated himself with others in the conspiracy or on average it's been a conspiracy to import cocaine into the united states or knowing or intending it would be imported into the united states even get manufacture and distribute again well you know i just read them and i understand i understand the argument that somehow that can be construed as an explicit statement if in it's mental state i respectfully suggest and given the other instructions that the judge is given about the defendant does not have to know all the details of that they can conclude a judge a juror could or could reasonably have concluded that mr martin entered into a conspiracy that conspiracy happened to be one to import into the united states but that was a detail of the conspiracy that they did not know and for that reason we believe the instruction was faulty briefly if i may regarding the closing argument the example of i think the best example of a prosecutor taking an argument and pointed it at a defense counsel an officer of the court came in this case with the powerpoint slide that was present and the powerpoint slide was a slide that talked about one of the witnesses in this case the cook that was at the lab the female and have now the defense objected to some of her testimony which if i'm correct dealt with her listening to conversations in the lab in the powerpoint slide that was presented at closing there was specific mention made that this was brought into the case over defense objection now take away power point take away technology there's no district court judge that would allow a defense attorney or prosecutor to say hey this is really good evidence and you heard opposing counsel object to it and the judge gave it the ok so you should really listen to this the powerpoint slide is a perfect example of that except it's not an argument made it look at my power point this is a good witness and you have that little factor at the end with my coffee is awesome yeah i put in an ellipsis right between the key question and the key answer  argument because we wouldn't be able to say we wouldn't be able to tell the court hey we would be able to tell the jury we had that question this was the answer and even though there was an objection that answer stood if we would argue to the jury said it was being taken to the united states i think i can understand why the government wanted to put that up on a slide in front of the jury and so there there are two options where to reproduce it as it was in the powerpoint slide or that's when i left this in any objection but the objection was on record the grocery had already heard him for an ellipsis for obvious reasons can but not go what are they leaving out yet but what they're leaving out is what should not be there it we should not be discussing whether or not it does judge accepted we can start with the individually yes now i'd like to address three individual issues involving mr martinez they got perhaps again if i can preserve a couple two minutes let's say for rebuttal i'd like to first of all talk very briefly about the sentencing issue because i think it's the most finite issue and that has to do with the question of whether or not the government had to prove it order to get the enhancement as a manager supervisor whether government had to prove that the participants had the same mens rea on and i suggest that's what the case law in this jurisdiction says in that mens rea in this case if we've just been arguing about certainly is that they would have also had to know  intended the drugs to go into united states and of course there's actually not a shred of evidence that the people that worked on the boats with mr martinez would have known anything about that the government in its brief makes what i think is a relatively novel argument page ninety four do it they don't have to have participants it's enough if the conspiracy is an expensive one and as i tried to argue in my reply brief at page thirty eight that's not the law here you still need to have a participant and the participant as defined in the law is someone that shares the same men's right so and i in our view the trial judge here it is a minimum in computing the sentencing guidelines th others i have when you bring these indictments the charge and talk about cartels are and are terrorist groups if i can talk about let you have questions if your neighbor had said they had to have the exact name and where they had to the subordinates would have to know or intend that the cocaine yappy headed for the united states and i didn't i think i thought our cases said the other right and that it's enough that they have some couple  culpability in the charge crimes and doesn't have to be the exact same answer here a crime that maybe even conspiracy producing cocaine would be sufficient for oh well with all due respect judge i don't make your cases that way i mean i think they this court house is the either the intent or the knowledge to import cocaine knowledge yes no i mean it technically if you could she has a government could have shown that mr martinez intended the drugs to go to the united states and the workers only newsa drugs were going to united states i'm sure that would be sufficient but of course we have absolutely no knowledge whatsoever as to what universal apac it is enough that the participants she supervised were culpably involved in an charged crime that were part of the same course of conduct or you may it's a novel issue and you may conclude that the opposite but i respectfully suggest that what makes this a crime that is punishable in the united states of america is that is this whole importation and th participants have to share that if they're just simply violating the law in colombia that's unlawful conduct but it's not unlawful in the united states of america i do want to talk about the  issues concerning the government's false testimony by agent greedo and the question about the photograph involving and hell leopoldo lopez with respect to  we now know it's false because out of the presence of the jury but after he already testified before the jury greedo to admits he has absolutely no recollection whatsoever of what he just testified to that morning the question then becomes what's the remedy the government wants to argue well this to gilbert you found out belatedly but you found out that that he didn't know this and so is your responsibility to call him back to the stand and i respectfully suggest that that's not the case the government doesn't get a pass just because they don't raise an issue on direct examination with their agents because this is testimony about the agent's conduct of the investigation in that sense he's still the government's witness that for example the jinx access you don't have to give the defense the statements of a witness until after the witnesses testified on direct examination the implication is that if i get a statement that that directly contradicts what the witness says then i get you know now i have it and now i get to say ok but isn't it true that you said this to the special agent and if the witness does miss ortiz did about everything else i don't remember i don't remember i don't remember then the implication is that i then get to call the special agent to say did she tell you that the government doesn't get a pass so that that agent is free to come in and lie about that the they're still they're the ones that have met with him they're the ones that have talked with his about hang back and anything that aside as long as you get to bring the information out on cross examination is there any obligation in your hypothetical for the government to when the diff didn't have to call the government agent in order to make use of the jinx material because the witnesses denying it or claiming not to remember my argument is when i do that as i did in this case with respect to other aspects of sorties testimony he's still the government agent testifying about his investigation the case he doesn't get a pass to lie i just and i went no one says anybody gets a free pass to lie in court especially not government witnesses  that you have the information about the credibility problem and that you have every opportunity to wring it out of the guy well you know that's the every i do believe the first part of your question is a no i believe that they're required to correct to correct the false testimony aright of and so they could have done it by stipulation i proposed a stipulation they rejected it and go and judge hogan didn't make them do it and that's why i cited in my twent letter the straker case which decided by this court in which you found an instance of false testimony was not harmful error be precisely because the jury teed it up the stipulation teed it up for the jury to understand and heated up for the government i mean for the defense counsel market that's certainly a way of remedy and i think that you have to do to prevail if i'm wrong it is give it give us a basis for holding that the constitution requires that route stipulation read our government standing up in court and confess in the problem and it is not sufficient in the constitution if you're given the information time an opportunity to bring the information that you're well i'm just i'm just didn't see cases saying saying that part o it and it's i understand why when might want to say the government has to take ownership of it line official but i didn't see cases saying that that remedy usually compelled well i think that's because that's what's assumed to be the remedy that's the language that the court the supreme court is used all the way from that down the government's obligation to correct but i think there's two problems it's worth we're talking two very briefly one the chronology here is different than before that's because the government did not disclose this purported identification so we have a hearing on it only on ortiz's identification only after your read oh gets on the stand and says yes it happened and so all of a sudden i'm at least entitled to a suppression hearing and sure enough at the suppression hearing after he's already been on the stand then all of a sudden i learned greta has testified he's already off the stand now all right and this is now speaking as a trial lawyer and and you know i just i just hope you understand this if you haven't been in the shoes you do not want to call as your witness if you don't have to someone like frank garrido because frankly  already shown you're going to hear about this whole men show business you saw in his testimony the grito slips in that he got the photographs from the bureau of prisons and that's one out actually not even true but i didn't want to emphasize that because he was in the custody of the marshals but that's the greedo was being stream we treacherous witness if i have to call him i can't cross examine him i have to ask him non leading questions and the government who's the one meeting with him not me yet so i'm going to  you know maybe but you know that's a describe narrow lane and we are getting a lot of those and if you rules against me now right here in iowa no i didn't because i don't want to read oh near the stand again is my witness you couldn't trust me i didn't know what he was going to say and the government could on cross examination get who knows what out you don't oh no you know why confuse it because i was thinking of other witnesses that identified your client that we just didn't bring up here objection action and they've heard that already the government is the infer that all right we know we now know in the end you know in the post trauma motions the government basically takes the position that garrido had no recollection so you know as as you sit here the government in his post trial pleadings basically said the truth was g didn't know i didn't remember all right but look at what happened at the time greedo says i believe idea that was a huge surprise to me because member the government had proffered after the surprise identification by ortiz which they had never proffered before miss recalling as i thought that the next day the government reported to the court that it just seems that he just has no recollection one way or the i don't i don't recall that i recall it but this is what i do recall and thank you all ask for the the transcript of the motion and on the day before the court you might have asked for it for a different reason but we're having a motion hearing about suppressing a brand new identification which is agreed to and part i'm sorry ortiz and pardee as looking at the boat across the car cross the river video as if that's an identification they're making for the first time so even on that day it's not disclosed to us that both of these witnesses are later going to testify oh no identified something in bogota so it came as a complete surprise when ortiz gets up and says oh no i had done a fin oh in the office with asian girl you know complete surprise i go to the government said well you never disclose this what's this coming from the government it tells me we don't have any records of that that's what they're saying i presume  they talk to greedo they had an obligation under the judge's orders to tell us about identifications so presumably they go back and talk to greedo and they make a representation careful representation that they have no records all right i make the what photographs were shown on but my i believe at that point i probably should have been aware i certainly was suspicious but did i know at that time that the reader was going to testify subsequently under oath that he had no recollection whatsoever about that because if that's what he says and he says it in front of the jury that's a huge asset for me because then i can argue to the jury look at didn't happen because if it happened read a would have remembered but that's not what he does in front of the jury i think the question that you need to confront and i guess we're not going to get the lay polled lopez i think question you have to confront is when that happens and it happens the the i don't remember anything happens after he's already been before the jury then whether or not the responsibility is still on me to have to call this problematic witness back when it is truly in our view and under the case law the government's responsibility oh sorry if i may with then the issue that we just left off on there there are a couple points to be made here first of all it's not at all clear actually i mean let me start with a different part on that  ask really you're not defending that oh i'm not saying that his testimony was i guess i'm saying that his testimony itself was not false in the sense of the the actual fact at issue here whether or not ortiz was show photos she very likely was his testimony was not just he said i know specific recollection of having shown photos to her but i was showing photos that everyone was is was his testimony her testimony is i was shown photos she actually didn't say who sho or it just struck me is i mean mr grunow time and again in this case shows up and just miraculously says whatever it is the government seems to want it helps the government's case at that time and has done a couple of times in this case and this one was it's all right to speak up there and say i think i did it to a jury when he said he knew that he had no actual recollection of what he had done i think frankly his memory of all done it and i think the record reflects that the government learned about this the same time the defense is this is not a witness who was prepped on this i got i've got that y'all didn't y'all didn't call him at least that's what we had we didn't call you all for good reason we're calling him on on this issue the question then is is you know it's out from the defense and that was only defense i think was the fence questioning i think they anticipated the answer no i was never i've never made any other idea i'm just on the one here in court and they got the answer oh no i was shown some picture of what is going on with this whole thing though that i mean ordinarily you know identifications there's a lot of procedures that go around identification there's a recognition that identification either helps the government or helps the defense you keep records of these things there's all these rules about who's supposed to be in the array and there's plenty of other times in this pays when it rains were done the right way and records were kept and then it seems why why is it that suddenly you have a situation where all these ideas are been done and none of the rules are being followed and i think the answer to that is because these were raised being done at a very early stage for a very different purpose this wasn't a bank robbery where you have a victim and you're showing an array and you're having the victim circle if there's a if there's a an identification there was testimony from  from two other agents i think the first one was medina the second was dire and this happened out of the presence of the jury where they explained what was going on and agent in new york had a photo array created  that involved in this defendant's photo and this is an array that the defense has they've been given the array itself it was provided and kept on file in colombia and any time that the da got access to one of these reasons or tada witnesses for the first time they would show them the right to see what they knew to see is that is this somebody who knows anything useful that we care about do you recognize anybody in here and if they said yes the testimony from these two agents was ok great hold tight somebody from the v a is going to fly up here and find out here and talk to you at some point that it wasn't being done for the purpose that would create the records that your honor is talking about or the defense is talking about could it have been done that way i suppose but it was for a different procedure at a much different number when says it was his routine practice to say you know anybody in here especially john mcginnis of the same bank you would just show it to people and then phone back to new york and say hey this person knows for example my candidate or you should talk to or put back in the file at some point the one that was in the file got shredded but it was not marked it was not a valuable though for defense if you're in an ongoing investigation and so i'm sure there's not been a massive investigation of the people said no and then you continue to use them anyhow isn't that something th government agents should be keeping track of that i don't know that that doesn't present itself in this case and i take your honour's point on that that if there had been a failure of an identification that might be something that an agent should have made a note of this person failed to identify i don't  how do you know who she picked on the array i don't know we don't have that right so what do you hope i mean she said she identified and we know because she knows him and judge hogan said this is somebody who had encountered the defendant numerous times knew him which are as as as they point out good for you or good for us there's sort of no thinking on this it's going to be helpful you know if we need to keep records of these things for a reason even if you don't think you'll need to use them affirmatively as part of your case because they'll do that in court person saying this is a guy or everybody else looks nothing like him i mean there's all kinds of problems with potentially with a raise i suppose that's right although the arrows would only be as good as the testimony of the agent who would say we didn't do that you know years later when like that though the fact that for example mr t s had identified the defendant when she was first to say what the government wanted any particular time i think that's not an accurate characterization of how his testimony came out he was called as a defense witness on this point and it had better that there's anything the record suggest is no reason he would have been anybody would have gone back and asked him about that and he said it first i think i did and as he subsequently explained the reason he thought he did is because he was showing photographs to everybody and then when pressed on it further said yes  i did show her photographs that that's not there's nothing from it that leaves and i think initially he said i believe i did and then after this sidebar to discuss everybody's surprise  that he said he was asked the questions he showed her photographs and he said yes then later on the stand in front of the the district judge with no jury there having had his memory refresh having having the government having had gone back to him on that subject gave perfectly accurate and responsible testimony as he did the first time it just caught him by surprise i don't think that's at all unusual i believe i did i had a copy of the photo array depicting your client yes that's a bit more specific he could but that's all true he said i he did have a look at this because it's not just that maybe and i think even i think even by the time his testimony developed in front of judge hogan i think it would be fair to say to characterize it as his and he believes he did that he was showing it to everybody but he had no specific recollection of initial testimony in front of the jury was actually fully consistent with that he was i think overly certain when the question was put to him a second time and he just said yes i did show or photographs i would submit that's not uncommon for a witness who has been caught by surprise on something that happened years ago and he got it wrong in the sense that he was not that certain as it ultimately developed i don't think he got it wrong in the sense that he never showed ms ortiz photographs the record is the mr t says she was shown photographs by somebody and mr greedo said that i showed them to everybody essentially i just don't have a specific recollection as i live and there's a lady in the testimony goes on to say i didn't show this one i didn't show this one i didn't show this one and i think there were thank goodness that was every but that's your he didn't say everybody but he said he was showing them routinely and so that and he explained that was the basis for my answer that i showed it to to ms ortiz's because that would have been consistent with my practice so i think it's just the way the question caught him by surprise as a defense witness on the subject of his being a defense witness i don't think there was any need to convert him over to a hostile witness and start asking cross questions he was already subject to being cross examined by the defense had been called by the fans but he was associated with the government and so they were free to ask cross examination questions from the get go much less if they wanted to call him back they could have asked a very tightly controlled cross examination questions it's also worth noting that they never even asked for the remedy that they're asking for now which is to have the government call him back as far as i'm aware they never said ok it shouldn't be oz it should be the government it just escape who went through the photo of the supposedly other richard gere oh ok and not on this i'm not i don't believe there was a stipulation or at least a serious one that was was ever offered in any event i think the cases are clear that it's a circumstance where well first of all the testimony wasn't necessarily false it was just more certain of its truth then it then was probably warranted but he may well have shown mr t s photos second the government didn't certainly didn't know it was faulted it discovered the truth of the matter at the same time the defense did there is no case the defense can point to that says in that circumstance it's not good enough under the constitution for the defense to be permitted to call the witness back and ask the question  if i could turn to the sentencing which is the other point that my adversary discussed i don't know the answer your honor to your question about whether or not culpability for purposes of a participant involves hitting every element of the of the conspiracy itself i think the guidelines aren't especially here and whether someone can be culpable and therefore a participant without being fully guilty of the of the could be reasonable to read the guidelines as saying that it's required that at least one of those people being supervised is a conspirator is a fuse a part of the conspiracy with the mental state that's required i don't think it matters here because it's so clear that it was satisfied with respect to martinez vega i know you had evidence meant to the jury about his sort of high level status but i can you point me in the record to the evidence that there was someone who was a subordinate who knew as you just said well except for this case had the intent and knowledge and participate in all the elements of this crime because you raised said it was clear on the record the igi and both sides and so i don't know what specific and they are it's you know you've got you've got employment situation so it's a little bit easier what evidence if you give to the jury the civically than one could cite for the media in the strict standard i don't think we had  affairs i'm not sure it's that strict a standard but i get that if i can i don't think we had specific i think it is true that for martinez vega we didn't have an individual who was subordinate to him who either testified or was testified  about specifically who was who was identified so we're not relying on that we are rely on circumstantial evidence including that numerous low level employees throughout the organization i knew the drugs were going to the united states i don't want to suggest that we have that for mr martinez big of what we have is the expert testimony that drug that that the fark drugs go to the united states in huge volume and then specific testimony from numerous people at all levels of the of the fark organization who talk about how normal it was to have discussions about it how openly it was discussed how it was discussed jorge again his general down to the troops explaining it to everybody from that judge hogan did not commit clear error and finding by a preponderance of the evidence the standard being refused for purpose identifying when the say he superintended and how we know that those people were aware of well as i think we've said earlier they could very well be a lot of people running around who just the i'm low level folks them's moving stuff in a boat and i don't know i don't know that much about fark i'm just a subsistence level farmer or something here in the rural lands of colombia i just don't know this unless unless your position is that sort of anybody who touched the car park conspiracy had to know had no or intent which is a pretty high menswear so i think that the there was some specific evidence as to get not the identities of specific people that mr martinez vega supervised but the group of them one example of that is on this expedition where mr martinez vega and another individual went off and killed two members of the lab and took i think it was a thousand kilos hogan specifically relied on this at sentencing mr martinez vega had was described by the witness as having troops eventually having his people who came with who did this thing with them and then who helped him move the cocaine to another place we don't have the identities of those people but it was sufficient by a preponderance and again it wasn't clear error for judge hogan to have made the decision that people who were involved in that level of activity for the farquhar going off and participating in killing people and moving part grill is not not a cook at a lab who incidentally admitted she knew it was going to the united states and that everybody talked about it  but actual fark guerillas who were going with martinez vega under his control to do this thing and then carry away the drugs that at least one of them knew that the drugs were going to the united states for purposes  preponderance of the evidence and again this court's clear air review of judge hogan there were other circumstances where mr martinez vega was providing people it was mostly involved in the transportation of drugs either on the boats or i think it was time we came through with that with a group of people on trucks the idea that all of these people that all these people described as working for martina vega not a one of them can we conclude by preponderance of evidence knew that drugs were going to the united states when that fact is payton the obvious as described by the expert testimony it is clear that the united states is the predominant market for colombian cocaine the idea that none of those people knew is is not plausible and it's certainly not clear air room you know i don't think we can test it we speak to some extent about otherwise expensive and i'm not sure we were very specific about what we what we meant by that i think it is correct that otherwise expensive  a replacement for having five or more culpable participants i don't think it's a replacement for having at least one person who was a couple participant be supervised by the defendant so i don't think if you had the defendant was  that and that's my point is that if you had only otherwise expensive but not a single culpable participant who had the mens rea who was supervised by the defendant i think that wouldn't be enough i don't think we argued it would have been enough in the brief all our b states there were other issues that were going to be in this bucket of mr martinez vegas of his separate issues that were touched on i'm happy to answer any questions of the court has any but otherwise i've responded to the ones they raised here today hundred thirty five and i will go through all the details but let me just press this is not as but nine as mr levy believes it has because the government had a standing obligation to inform the defense of any identifications they failed to do that with respect to miss ortiz or they they told us about something she seen in the united states when she looked at the car video and that was you actually have that transcript  fi him that the government would in fact ask mr greedo whether or not he showed pictures to her and in the government's response was we have no records of that and so it simply  unless people are completely incompetent then i do not accuse mr levy's colleagues of being incompetent of the mr greta would have known that was an issue would have been specifically asked about that by the government and so to just say oh well you know he's just confused and just surprised i think is completely unfair and does not reflect the continued pressure on the by the defense that is by me to be to have these identifications disclosed the right thing and the only mistrial i think if you read that you'll see that what happens is i found out about a week later because the government was refusing to correct it i don't know how i would have to look to act on that it's a court stipulation or it's some point i did and that stipulation was was turned down and i'll be in the government but by the court by the government well the government wasn't going to do it and judge hogan didn't make them do it and i believe that's discussed in the in the but it's just simply to say oh well he just didn't know this was coming and was surprised that's simply not true or shouldn't be true based on the government's own obligations to conduct this investigation good morning my name's gary sydell with mr rudd i also represented mr quaver us at trial i believe that we have a total of ten minutes for our individual issues and i would like to reserve two for  uttal and split equally the issues that i will deal with and that which mr read i will deal with as judge ginsburg noticed earlier as or used the alias of min show in support of this two and a half years before the trial for the first time in writing we asked for any and all defendant's statements none were received then none were received throughout the course of the case including the trial i believe the judge well let's characterization of francisco aruca was indeed accurate he was a witness who would say whatever he perceived the government wanted him to say and he did indeed i would analogize him to the energizer bunny prosecution witness he kept on firing irrespective of the questions that were asked particularly of the prosecution but also by us in cross examination he had what i would submit is an agenda he was going to get out certain information and indeed the very first substantive question asked of him once he began to testify after he completed his thirty year of law enforcement experience first as a new york city police officer followed by his then current a employment was how many suspects have you interviewed hundreds his answer was followed by how many suspects have you provided miranda warnings to again hundreds and the very next question which begins the troop down this problematic road was where were you one september seventeenth of the two thousand and seven is the answer was i was colombia to the united states what we submitted then and what we submit now is totally irrelevant to the sole indicted charge conspiracy to import to the united states cocaine in an excess of five kilograms whether he got here on seven twenty seven or d c nine it didn't matter but not only was greed as testimony proffered as how he got here but he would not say anything about any conversations juxtapose that proffer your honor with the first substantive question how many people have you interviewed well that's leading to a statement the statement which ultimately says where were you september nineteenth two thousand and seven i was performing an extradition and when i asked him what his name was are you min show for the first time we have yes what i would characterize as a confession the first and only confession of the use of the alias men show with airman so quaver us cabrera never before had we gotten anything in discovery and we didn't get any of that in any jencks material for go read himself a five pages the judge and that's that's the problem here are we first have the the prejudice with the volunteered statement yes  response to the question are you mention subsequently because this came out of the blue and as mr red arrow said earlier in a slightly different context we didn't want to start raising red flags about that we had the tank team approach between prosecution and witness or min so wave us cobra also known as min show a total of nine times throughout over three pages we had a bench conference we opposed the disclosure for the first time of yes a statement attributable bygger radio to the defendant and judge that the trial judge did provide an instruction what we were informed would be curative instruction well contrary to this court's strictures of both foster and mclendon it was an instruction that one repeated the problem information including three times a reference to the alias men greta response simply was our human show yes period for greedo the instruction by the trial court referenced our human show yes i am in show nobody said i am in show that was compounded by the further problem we submit that the jury was given an explanation for why they were hearing this instruction to disregard yes i am in show because it was due to a technicality now the district court didn't say it's a technicality but i submit the definition of technicality that was given was this was not provided before trial and therefore i'm obligated to advise you ignore it so unlike foster unlike mclendon we have repetition of the problematic language we have addition to the problematic lane which and then we have something that does us as defense attorneys no good i submit because well i'm forced to tell you this because the defendant's lawyers raised an issue that is the problem people identified him as m i don't recall i don't recall now but of the fore colombian witnesses only those two referenced mincha now there was no direct conversation between either of those witnesses and mr queda where m the sister simply overheard or what she believed to have been an overheard conversation more than six years before her testimony where the nickname or the alias came up we presented three colombian witnesses however cabrera we've never known him to use or be known by the nickname of men show these are people who had long term dealings with mr quaver us the person who sold him his witnesses who had no direct conversation with mr quavers but who claim we knew him or we heard him identified by the aliens are what the judge told him to do well  volunteer information about yes are you minshew is tantamount to what we just experienced of a fire alarm going off in mid proceeding you are not going to forget it regardless of what cautionary instruction may be given in the cautionary instruction in this case is far over the line i submit from foster and from the clinton it repeated the information it added to the information and then it provided w i would characterize is a basis for that instruction that did us no good and go read those testimony was like a rapid fire guide he volunteered stuff specifically this conversation which we were expressively informed was not coming was not coming in this is after two or three hours of witness preparation before he testified and it's out there and he is the only one who has come up with the defendant said this is his alias it is more problematic because he was the only thirty year law enforcement witness who provided any alias information he was the only witness who did not have an immunity agreement in two separate countries for whatever he was about to say he was the only witness who did did not receive substantial financial benefits for that testimony he was the only witness who was not electronically tethered to the prosecution in this case an issue that mr red or red i will address and he was the only one who claims to have had face to face conversations about the alias with mr graves i submit that all of those factors enhanced what he intended to do in that is make the sole connection of men show as an alias with this particular defend something that no one else in the entire trial did indeed at the very beginning of this case we received thousands of wire taps with a min show on the colombian end of those taps which ultimately we were informed wrong minto wrong person so the government needed in this case to have some kind of connection with airman so grave us cabrera must be min show for their case to to work and the government witnesses who they produced were all never involved with testifying before looking down at their at their feet not looking at the jury were timid didn't remember a lot of questions and indeed none of these government witnesses from columbia ever volunteered this information about min show being mr quavers comparable to any law enforcement officer either in colombia or in the united it's it was only after they were contacted years after the fact by law enforcement and were specifically asked about it that this information first come up years after the fact so  i submit that not only was there less than prompt cautionary instruction and this was after three pages of testimony after three pages of a bench conference we have a cautionary instruction which we didn't find out in terms of particulars about until we heard it and that exacerbated the problem this was on thursday march for two thousand and ten on monday morning early march eighth two thousand and ten a written motion for mistrial was filed in large part because of the problematic cautionary instruction ultimately that we heard and the testimony was at the end of the trial day i'm a prior  thursday obviously the court's aware that that motion for mistrial was denied which is what gets us here on this particular issue i would submit that it was prejudicial in that there was no instruction that's going to unring that bell in the minds in ears of the jurors in terms of the alias is being equated with the person seated in the courtroom thank you thank you sydell just reference which was the confrontation issue dealing with the ankle bracelet perspective of a trial attorney in court watching this happen it was extraordinary i was the one that actually saw the first sign of the bracelet it manifested itself in a pant leg being a little bit fuller than the norm and the court is now where given our submissions in the appendix what happened after  that the core of this is i couldn't ask him about bias or i couldn't ask any of the others who were wearing that ankle bracelet about bias i couldn't confront them on very basic issues such as are are you receiving benefit from the government have you been housed by the government have they paid for your meals things like that no by the way are you will attached to the government that has brought you to this country that is has a close bilateral relations with the government that you are now serving and being monitored by in colombia  it was a denial of witnesses that proved crucial to the government the denial to ask them what they were thinking what at length at least offer the jury the opportunity to think about whether this person that is now officially under the instruction is classified as a cooperator whether now this person has an extra level of thought that should be provided when they those bracelets what they actually thought we actually asked the district court judge to allow us to question outside the presence of the jury what the witnesses impressions of what that  bracelet meant i mean the explanations from the government ranged from it is something that is applied just in case they get lost to the sinister of this is a very bad situation that they're in and people could actually kill them but the defense does not have that we cannot ask we were not able to ask and we did not have the ability to elicit in front of the jury what this person's bias could be and these were critical witness as as we've discussed everything today we know these are the lab witnesses these are the people that placed my client into the world of knowledge intent and identification so we see that that was a violation i turn to the admission of the lab video which was another extraordinary event in the trial and the court has the video i would highlight we set it all out in the appendix but i would highlight moment twelve minute twelve and seven seconds into the video what happened with this video was that the ladies and gentlemen of the jury they were essentially placed in the middle of the civil war but as as we began to see what was happening we protested we objected and we said wait a minute this video has nothing to do with this case i mean there are place in the middle of the civil war at that point in the video twelve o seven it goes from the witness testimony who was a colombian national police officer of the lab and here the barrels and this is how it's processed and the last thing you see before that moment is one of the army  regulars showing the testing of the cocaine turning blue here it is and then suddenly you get into vamonos thomas and vamonos is let's get out of here because they are coming now what you see after that is they are getting out of there they are blowing up the lab and as the other people come and see the civil war you hear people say bombing us that maybe it's because they were ready to start the fires and burn the stuff up indeed but the witness states clearly what was happening we were receiving fire from across the river we had to get out of there because we thought they could become a lesser problem in the witness not in the video well for the purposes of the video it's akin to showing a search warrant video of a house in northwest and then saying welcome to the trial in for this house in northeast and showing that video different point complain that you're in the middle of a civil war the witness who was a fact flash expert witness tells the jury this is what's happening they're firing at us the helicopters are there because they're shooting and giving us cover he's making reference government but they were placed right in the middle of it with that video the video is extraordinary that video creates fear that video is apprehension you hear the bombing osama's the fear in those colombian army members is  and my concern is that that jury is taken an irrelevant piece of evidence being shown and then receiving testimony from the fact slash expert witness that hey it's them they're coming at us and oh by the way they're members over there i mean the prejudice spillover from especially from something that was absolutely irrelevant to the case at trial was extraordinary it could have again the could have portion of this the government could have presented a photograph or they could have created  windows of the each video video frames these are barrels lieutenant colonel is that how it's done yes it is this is the area where the leaves are dried is that how it's done yes it is but the video was a movie that brought them into the war you can describe it the fark is a guerilla movement and the colombian government is fighting with the fork but to bring them into a war scen the prejudice was extraordinary with the court's permission if i may just reference the the electronic surveillance are interesting our point with that is that satellite phones being used satellite phones being used and requested of district court judges to be used directly outside of the united states some distinction with some of the other cases where a listening posts are here or cell phones or singing pinging off of towers here in the united states the interesting thing here was that the cell phones were strictly to be used to be placed in an infiltrate before location  conversations and that is what the judge in the southern district of florida actually made a major ruling on saying that this is going to go outside of the country not so much focusing on on listening posts or data collection the trial level saying hey look we receive these a video these a wiretap from another country and we can't trust him we can't trust him we don't have the same level of confidence that we have with title three resolutely right but the interesting thing here is when a judge is presented with an affidavit that says we're not going to do anything in the united states with the telephones these phones are going out there they're going to go into the jungles of colombia they're never going to see a u s cell tower and the only thing we can tell the court is they're going to ping off of the satellite and they're somehow going to be linked into maybe a rockville address or maybe a data collection center that i believe was kinetic in california in this case is that appropriate for title three we would argue it's not you make that argument we didn't make the jurisdiction argument and that's why we're working on the plane  r with that i think the court i'll start quickly with a wiretap they didn't make the argument below i don't believe they're even working under plain error i think it's way if you can't take a suppression issue put it in your pocket and gamble on an acquittal and then pull it out again after t error but there's certainly nothing plain about it even if there were error every sort of court that has thought about the issue of a listening post is being jurisdictional have said that you do have jurisdiction were listening post is so the idea that it's clear that you don't and that that would be plane air is is incorrect there's also the potential overlay of good faith all of this was laid out in an affidavit for the the judge to issue the good faith it is not clear whether good faith applies to a title three or not but that's another issue that is not plain on appeal it may well apply and to carry their burden the defense has to show a this is plainly erroneous and b that it is clear that good faith is not a concept that you can apply in title three my point being there are a lot of unresolved issues that would have to be resolved in order to do this that's not what plain areas planers where it's crystal clear that they're entitled to relief that that is not this case by any stretch and then on top of that there is the issue that you raise judge millette that that all we get from the fact that title three doesn't cover this wiretap if it were true which is not it is that maybe there's no protection for the defendants and again not an issue on which they can be decided on plane air and the and the issue of the bracelets there's not much to be said about that that cross examination was it's hard to even understand exactly what the relevance of the cross examination was but on top of that judge hogan spoke with the marshals determined that the bracelets were on for a security concern of the for the security of the witnesses and correctly concluded that if you were going to allow cross examination on why they're wearing the bracelets the government would have to be able to explain that there is the security about men show there are a few things on that my adversary said that no instruction would unring that bell that certainly cannot be truly a cannot be the case that this whole trial had to come to a halt and a mistrial had to be granted because there was some passing reference to a defensive mission that he was mentioned certainly some instruction would on ring the bell the instruction that the judge gave was the instruction that he  the instruction that he told the defense he was going to give this was not a bombshell by the way it took eight questions for the defense to even figure out that this was something that they cared about it wasn't the moment that it hit and everybody recognized that it was  questions later when they said hey can we have a sidebar by the way we didn't know about this in the past but apparently there was testimony that the defendant identified himself as men show the reason it was not a bombshell is because the defendant's identification shall was largely irrelevant this is not like chickweed go and even their judge hogan and post trial orders and opinion said the issue of identifying him is should we go was not all that relevant that holds show the witnesses know ms mitchell but more importantly the witnesses knew what he did his identity was never in dispute he was the brother of the head far commander in the area and a number of witnesses said he was a leader and the operator of a of a cocaine lab whether or not he was man show was nothing to anyone and i would submit that's why the question got asked answered and it took eight questions later for anybody to figure it out at that point the judge said ok i'm going to strike it i'm going to give the instruction to disregard i have the exact language here but he says i'm going to tell the jury to ignore the defendant's statement that he was mentioned and the defense said thank you at that point if they thought there was some other instruction that was going to cure this more precisely than what the judge was about to say it was their obligation to face al they were happy with what they got at the time and it didn't cure it completely and there was no other way to do it he questions later there's no other way to tell the jury what testimony it is that they're supposed to that they're supposed to strike and then finally one last thing on that we have in our brief that page sixty nine there are four people who i d d the defendant as men show finally on the jungle lab video  state right up front that the defense is right and we are wrong in our brief that this was a jungle lab in the sixteenth front they point that out the confusion there was there were still images that had come in that were from the sixteenth front this is a jungle lab that was in the first front i believe but to be clear on that that was a mistake in our briefing on appeal that was never confuse a source of confusion at trial judge hogan was it was perfectly clear at trial that this was  a jungle lab from the from the first and i believe seventh fronts and so we we have injected that arrow to appeal to that confusion that but i'm trying to withdraw it that said the reason it came in  was precisely because this was a jungle lab operated by the conspiracy and we were fortunate to have a piece of evidence that allowed the jury to see that otherwise they got relatively dry descriptions of what a jungle lab looks like if you have not seen the video it's illuminating as it was for the jury to be able to see what a what a jungle level looks like like the one that mr quinn of us was running the there is no civil war in this video if you take a look at it it is raid to be sure they're going into enemy territory and they're quickly blowing up the lab and getting out and that's what you see at the very end there's a description by the witness you would miss it as being the helicopter rotors if it weren't scribe by the witness where he says oh that's fire that we're taking as we're taking off but it is fire that i mean it was explain to the jury so it is what it is but this was a case where we put on evidence that this conspiracy was an armed insurgency the traffic in cocaine in a video that shows that even if it did which it largely did not but even if it did that is evidence of the conspiracy and relevant there's been no particular explanation why the unfair prejudice what the unfair prejudice is or why it would substantially outweigh the obvious relevance of the video and on top of that why it would be a grave discretion for judge hogan to have concluded otherwise i think that covers all of the points so the government will rest on its pretty at this point thank you everybody with out of town but we will give you each one minute if you need to follow up on something you with respect to the girl read oh prejudicial confession as i will refer to it the problematic testimony came out on march for trial began actually in february two thousand and four with several days devoted to picking a witness in short we were in the first week of this seven week trial and therefore it is not as though we completed ninety percent and that would be a bigger loss to declare  mistrial early on in the trial the government from its opening statement referred to mr rudd quavers his brother who was one of the top individuals indicted in this fifty one codefendant case and in in short to stablish guilt by association this is the guy who's out the bottom number forty nine on the indictment last two is the brother number one and number one we know is a big person fark and therefore this guy's guilty because of that association the defense was not happy with the district court's proposed instruction because he didn't say i'm going to repeat the problematic information i'm going to add to it and i'm also going to provide an explanation why there was no discussion for instance is i'm going to tell a jury this is a rule sixteen violation which the prosecution concedes what we got was not what was previewed at the bench what we got was more problematic clearly over the line i suggest in terms of both the description of the instruction in foster and in the clinton  interrupt any any improper answers in fact it went back and forth several times indeed after the bench conference after the jury instruction the very next question by the prosecutor was a were hammering home that alias and therefore i submit that the evidence establishes that this was important to us in it was certainly important to the prosecution at that time  beyond that i believe i have nothing further in the red light is on the on thank you very much colonels testimony we are receiving fire receiving fire from far these are members of the fark that are sitting right across from you please don't history the machine guns were coming from the helicopters we had to get of there it's a very volatile situation it's because of this individual and his organization that are there it is saying actually blamed the defendants for the gunfire shown in the video inference were there were breaking up a park lap we're under fire from the fark and i'm here describing what the fark does and the government takes the step and you know will argue front were the case and i appreciate that they noted that if this was a front that was associated with my client the relevance is there but the relevance here was just not there were raiding a house on one street and we're going to introduce that video in the trial of a house on another street and we  large conspiracy cases here and we do not have in the murder and in the mourners in the gray cases we do not have videos being introduced although we daves a large conspiracy and there are defendants and addresses all over the town we do not have the raid of one house being shown as an example of what they did in another house it's just not done and yet we have that here so we have that baseline but then beyond that if it were just to be the example if it were just to show the workings of the lab that would be in a good spot i would argue you doing a good job showing them here's where the sink is here is maybe where the methamphetamine was cooked but in this case it goes far beyond that this is what the it goes to that to a certain point i understand the argument of relevance i want to know about the prejudice the prejudice is that the violence that is associated with this video the the mayhem the explosion all of that is attributed directly to my client and that's not even admitting that the client is responsible for what the government claims my clients not there as a fighter if we accept the government's argument my client is there as a lab work while the government while the fark and the colombian government may have this killing and shooting at the witness that the government has presented and if the government feels good about that person that they brought up here then we should feel good about that and we should have some problems with that defendant and his organization if they would just have the video frames i argue we would have been ok the fact that they played the whole thing the fact that we were not affected the lady and gentleman of the jury we're able to sit and experience this this this war movie i mean it's it's a war movie projects my car to see the video so you're not setting me up here for disappointment i'm not going to spoil it for you if you're really going to spoil it but i tell you to look at twelve o seven twelve minutes and seven seconds it right there i think the course of time thank you mr gilbert just to i know that you were appointed to