praising minutes i'll begin with the issue of the government's failure to collect evidence in this case namely the government failed to collect a roster of inmates that were held at terminal island during the time of the incident which was august of two thousand and two pretty clear up something for me about the roster yes i am one possibility and i wasn't totally clear on which it was is that the roster routinely gets destroyed after a month or the request was made for the roster but the request was not made until after the usual time for destruction and it had been destroyed and there was no tip to the prison or i should say tip there was no request from the defense to the prison please preserve the roster the other possibility is ross routinely gets destroyed but there was a request before it was destroyed hold on to this roster it bears on a felony case that's coming up good case for the defense i haven't heard that one before i know you're right your honor i'm not aware of an explicit duty in the case law that the government preserve pretty indictment however the government was aware presumably since they were investigating the case that there might be a prosecution i asked for the broom you've asked for the unit roster but is there anything in the record that shows that this was done in bad faith why would i would point to in the record is the fact that one obviously the government had had standard is that you have to show if you're going to get anywhere with this you have to show that the government acted in bad faith to destroy the service and i'm asking you counsel whether there's anything in the record that shows that the government acted in bad  that that the victim in this case mr mesa acknowledged having used it for him all those facts were before the investigators and and they acknowledge that their job he acknowledged suggests a gator that it was his job to preserve the he did not make any of that nature and that's actually another fact that i made it is that the government's answer to why they didn't preserve the broom is that mr president has failed to state that the broom was employed and putting the burden on the defendant to make a statement as obvious implications in the fifth amendment and is in the appropriate you know properly it's the responsibility of preserving evidence from the investigators the defendant to point out it's it's really hard to believe that that's what the investigators you know how are they supposed to know ordinarily you destroy the roster records ordinarily if there's room weigh in on the floor you put it away how are they supposed to know to preserve the broom or preserve the rosters i think in this instance at least to the broom they would have known because it was laying on the floor i think it's an important fact that it was there laying on the floor at the crime scene in the government's own crime scene photos i think that stands out the most so so presumably the job of the investigators to take any such possible evidence when they don't have the around at the time of the assault they were aware that there could have been other witnesses and they didn't bother to try to interview them or preserve their names or with respect to the broom there was a photograph that was taken of the broom i believe  since that existed and that was available what other evidence is there that you wanted to preserve that was not present because of the missing broom the concern would have been obviously for fingerprints if it was possible to retrieve anything or prints i think where the victim or also inculpatory evidence off it would have been relevant and is discoverable for fingerprints of my clients would have been on there so either either one also any splinters any analysis to me not being a forensic pathologist of any kind or i can't detail too much but i would be curious to know whether there were missing i believe that would broom missing elements of the broom itself in addition but it's conjecture based on your part there's really no doubt you don't have anything other than what you just said that would have come from having the room available that's correct although it's clear that the used so unlike the situation in for and if i can compare vallance wilber now where the witnesses were deported they were they were actually interviewed and we knew that the evidence that there was no evidence there and here we knew this item it's difficult to com the defense presented evidence that the victim had prior convictions and notably the ones i emphasize in my brief or convictions for misdemeanors involving violence and i'm sorry conditions f involving misrepresentations and deceit and also prior acts involving violence so the s to the misdemeanor convictions involving deceit those would have been admissible under six zero nine eight two which allows the mission of evidence in valving of prior convictions involving some element of deceit the court essentially just applied the first part of six o nine and said any conviction that didn't need the time frame of ten years shouldn't come in is too honor but that that is not a flank it rule i guess and that's the that's the problem and even at the trial it was just at the court that that is not a blanket rule and that the court still has discretion to admit priors even if they are older and in this instance they were particularly relevant because they did show a deceitful nature over a course of time it wasn't just a prior conviction in one nine hundred eighty  there was a park admission eighty two and eighty nine so it wasn't simply just the one hundred eighty two conviction for bring alcohol into jail that was thought to be admitted but also a seven year later conviction for for petty theft to shop shoplifting involving wearing the entirely to conduct any analysis of whether those violent acts should be admitted notably a prior assault that was very similar and could have been admitted under four four b was a similar my recollection and i could be mixing up one case with another both individuals involved were inmates and had records so there wasn't no not the usual concerns one sees in these types of cases and so it's ultimately the jury was left with this incomplete picture of the individual who was the victim he's violent nature and his propensity towards deceit and the failure to provide that information to to the jury that was prejudicial and prevented mr praed from properly cross examining the victim can make a good point though that the jury was well aware that you had two inmates with bylane histories if you will you have any thing you can share with the court about why you think this was prejudicial error i know you're contending that it's error but why would this be prejudicial why wouldn't the jury be able to filter this out and figure out their couple of tough guys here you know and want to beat the other one up words despite the why and whether this was unprovoked whatever it was per se found in most trials but given the rules of evidence given the system under which we operate how was your client truly prejudiced by the omission of the service if you got some evidence and clearly the jury knew that the other person the victim in this case was not a really wonderful outstanding citizen but how how would the introduction of that evidence have really changed anything in the eyes of the jury  i think that well the prior the pirate attack on his girlfriend was specifically significant because of it's for her being nature in the sense that the similarity that at least i see with with with that the instant offense and i would add to that that the prejudice lies also in the procedure that was employed in that the district court completely failed to apply for for be so looking at it just from a procedural perspective rather simply and then we have a jury might have seen it there's that concern as well as the jury didn't get the full picture and mr president is didn't get the full value of the four for be analysis by the district court  funny for the government i have a question for the government and i can see how every ruling that the judge made was defensible and even if it were not it was not shown to be so prejudicial as to require reversal nevertheless i don't understand why the stuff was kept out i don't understand why the prosecution would object you've got two inmates fighting each other my own experience a jury trials as they usually do produce a true verdict and back when i was a trial lawyer and trial judge they work pretty well but they don't if you make one person out to be an angel which he's not and the other one out to be a total villain which is not i don't understand why you didn't let in the old crimes for why you were drafted sure there stale but on the other hand the guy's been locked up in prison he wasn't outside where he could be people up with baseball bats it's just not as convenient in prison to go beat up your girlfriend with a baseball bat is when you're in the apartment and it shows he's a real violent dangerous scary guy and really matters wearing the clothes out of the store shows he's kind of a dishonest guy want to just let it all went and let the jury figure out what happened well ya know what i would say to that is that the jury did have an awful lot of evidence and now they didn't have some stuff out of the store jurors are likely to think that's sleazy guy but not scary guy somebody who sneaks into a house at night when the people are there scary guy had that's why i'm the exercise of discretion not only by the judge with by the prosecutor if you can figure out why this evidence why you wouldn't want the jury to decide the case but your honor there was really it was really a balancing they also knew about his in the ration violations big deal well they knew about our california has immigration violations and they don't beat people up with baseball bats well model but he did have three felony convictions it certainly showed he was a repeat offender they were that except that your honor there was a lot of evidence in this case if the defendant actually lay in wait for this act and he admitted it on the stand that he snuck a metal box cutter blade past two metal detectors into housing unit where no one including the guards were and he says it's because they're scared of the other guy once they pick up a room step because they are scared of the other guy one says they took a shit with me because i was scared of the other guy whipped out a bra box cutter plate and slashed the others side that's not what what he testified to his self defense was hours earlier as his workplace eunuch or he had some kind of alteration with the victim he then got another inmate to give him a box cutter plate and then he snuck that into the into the prison which is why the unit roster and the room both lose some of their relevance and value in this case because his self defense argument was somebody  money from him moreover in this case this defendant had been in the witness protection program the entire time he was in federal prison he knew very well that there were ways in which he could have if he did feel threatened have responded to that threat actually happened in the hallway and the bathroom at no point did the defendant or the victim say anything about there being other inmates in the bathroom so that the relevance of that roster is definitely  diminished by that i would argue your honor that i thought the importance of the whole roster argument was you never knew you were supposed to preserve it until it was until after it was gone i do believe that's one of my  certainly not it would have been very helpful for us on both of those accounts but what happened was the prison system is that there's just that a computer system which automatically purges i don't know how frequently there was no intentional action  and three so they knew that shortly after he got out of prison he connected and out of crime ok and could you just quickly the tale the nature of each of those ins and i want to get some sense as to what the jury did here they that they say no they did not you're right and what about the two thousand and four they knew that that it had actually occurred in may of two thousand and three and they knew that he sustained a conviction is two thousand and four which was the year of the trial ok but was there any testimony about violent acts against anyone there was no opinion or reputation testimony submitted no you're on ok what if second degree burglary in california i believe it means breaking entry and stealing something common law burglaries are sorted out by daytime high time residential nonresidential most states when they've codified burglaries have followed some parallel skiing so i asked you what second degree burglary meant t open door closed door i don't know that you know as to the discovery issues when i was asked the court to keep in mind is what the officers actually knew at the time of the assault when they got to the  me get a little further on something if if i were still a district judge and i were trying this case i would have let in the prior bad acts of the victim for one thing they may have some relevance on whether it was a violent guy who initiated the tech the attack and for another thing all of the case law says that the protective ness against the prejudice of prior bad acts evidence goes mainly toward the defendant and when it's not the  defendant it should be more liberally admitted i would have admitted it so the question for me is not whether the judge properly kept it out it's whether he abused his discretion by keeping it out now there are a whole lot of things where i i would have done it differently but it's not an abuse of discretion give me an f pithy way why it's not an abuse of discretion well first as to the domestic violence arrest your honor that would have been a trial within a trial it was know how he brought alcohol into the prison so we don't really have facts to say that that was an act of dishonesty and in fact the district court made the finding that none of the misdemeanors went to the issue of dishonesty and line w how get that i mean we get all these cases the felony is reentry into the united states having been deported without the approval of the attorney general well a lot of people come back their families here and they're not supposed to do that and evidence of recent criminal conduct before that if i could turn to the final issue of the self defense fund as i mentioned before there was a lot of evidence about the fact that the defendant lay in wait for the victim and the defendant during this three day trial never once objected to the introduction or line of argument that the government made concerning the prison conditions they never he never suggested any alternative jury instruction in fact he presented this type of evidence himself and i would argue your honor that this evidence is absolutely essential for the jury to be able to make a determination as to whether or not it was reasonable that the defendant thought there was no other option for him but to engage in armed assault the testimony that the government put on as to time short and as to the various other prison officials went to the fact that this prison  traditions about the prison rules about the type of help that prisoners can get in the prison is obviously going to be important in any prison itself it's anything for the counsel nothing for first to the issue of the preservation or the collection of evidence the government emphasizes that there were no witnesses that testified that there were there was anyone in the bathroom but that sort of begs the question no lack of witnesses is there because of the lack of a roster or any of the to seek out these witnesses and find out who was there there is clear evidence in the record that there were witnesses around but from the government's witnesses and from the surprises him and his testimony and that's uncontrover d the government discusses that it's was not intentional action and we can see that it's not intentional action that's not the standard however bad faith certainly has been shown by as i mentioned earlier putting together a series of facts  putting together evidence that the evidence is there in this instance because because the roster the government was most aware that there were witnesses around having interviewed a few people and that's also on the record they did interview people who are is particularly egregious under the circumstances quickly on the on the issue of the four for b six o nine i would add that although or take a govern points out discusses that shoplifting need not be a clothes out of the store it was more than simply carrying him out in a bag and at work or taking them off the rack and walking out with him he actually wore them in his own and we would suggest that that involves an element of deceit finally on the issue of  because the way the government presented the evidence and the fact that it over emphasized over and over again the guillotine of alternatives could only have confused the jurors the jurors received instruction the government had to prove this prove self defense instance and the government's presentation of these alternatives that mr prison minute supposedly had effectively would have cannot could only have confused the jurors as to what the government had to show self defense it negated the ability of mr  especially in the prison context and self defense will never lie at least under the reading that big gives self defense because an inmate in a prison is always going to have the ability to go to someone the question is under the imminence of a self defense situation can they can reasonably be able to do that