want to save time for a bottle that's fine just keep track of your own time and we do have a light so watch the lights i'm not a super stickler on time but i'm not a super easy guy on time either so when you're getting ready to be done the lights are flashing red you need to wrap it up of the government's case in chief when its final witness at as the very last answer of his direct examination testimony the government expert a pint that the likelihood traffickers would coerce a commercial truck driver to import drugs is almost nil if you try to use you know our office did what was the objection to that question the objection to the trip to the question was this is the ultimate issue litigated before trial in a motion in limine when counsel raised objected on several four b grounds among other grounds to any opinion that would explain precisely how rare dress is or the dress never occurs and so the district court from the preacher litigation and from the this is the ultimate issue objection was aware that you know the interesting thing about making that objection to an expert witness is that it almost assumes that the witness is an expert well and that's that's that's true that of course this witness had already been qualified as an expert by the have never seen a case where whether in a civil or a criminal case were an expert is sought to be qualified opposing counsel is denied the right to even w the expert is that a normal practice in the district of arizona i can't answer that with certainty i don't think it's uncommon and in a case like this where we have an agent testifying as an expert which is a certainly normal a normal occurrence it at least in my experience what happened here with a disc with the experts qualifications being elicited on direct examination by the prosecutor is somewhat consistent no not all judges will anoint the expert as an expert in open court but it defense counsel certainly requested for dear of the expert in objecting to the experts qualifications pretrial as i understand the record the district qualifications sort of thing interesting case in that judge zips allowed expert witnesses on both sides yes so the defense had an expert witness correct  whose testimony was directly unsurprisingly directly in opposition to the agent hall who is the government expert correct correct on the dress question yes and the jury heard from your client also yes so two competing experts and the client all focus on the issue of whether he was coerced or yes and jury could have found either way right it could have and that's why this opinion and the qualifications of this expert of the government's expert is so crucial because this is a law enforcement expert and this court has recognized the testimony of a of a lawn f enforcement agent as an expert carries special or of reliability and trustworthiness and so this expert not only was the really the government's only rebuttal of the dress claim but would and the centerpiece of their case but was extremely influential witness on for this jury and so for the expert to testify to be qualified as an expert despite having no experience about how traffickers operate inside of mexico where the stress threat would be carried out and then to say almost nil which the beauty of almost nil is that even as it admits possibility it immediately dismisses it and that's why almost no runs afoul of rule seventy four b because it necessarily follows that if if traffickers never use coercion it necessarily follows that the defendant did not have the mental state for direct which is a well grounded fear that threat would be carried out if you get your point  i thought it was interesting that whoever tried this case for the defendant i thought it a very effective job of cross examining commenting etc on the fact that the defense expert had extensive experience variance on a traffic drug trafficking in mexico and and crossing the border where is the government next or seem to have very little is that a fair assumption yes it isn't and defense counsel that was the precisely how defense counsel articulated the objection to the government's experts qualifications to the district court before the district court denied for deer a trial and further and she thought that went to the weight and not the admissibility right that was that was the district court's ruling before trial but i believe that was that was what what she thought  but what what we end up having is well excuse me she believed before she understood before trial that the government is presenting its expert both as to blind mules unknowing couriers and as to dire and she allowed before trial in opinion that dress would be unlikely which it would be just fine and then at the time of trial in qualify in determining that this expert was qualified she made a statement judgeships that she believed that this expert would only be testifying on the blind mulish because defense counsel objected judge would check this expert has no qualifications in mexico that's where the defend it was threatened and she said well this doesn't go to that issue it only goes to the issue of unknowing careers or blind meals and that the government didn't correct that misapprehension and so the time the district court ruled this actor was qualified even though where the agent hadn't been an investigator was almost nil you think a question that could have been asked and border of the government witness that was not asked earlier and cross have you ever investigated a drug trafficking case as an investigator inside of mexico that would have begun to go down the road i thought there was plenty of cross exam on there there was there was cross examination and contrast in the different experience between the two experts i don't recall that being put that direct that there was there was cross examination about how  the defense counsel was trying to illicit the expert didn't have much experience in mexico and she asked have you have you interviewed people in mexico and he said yes well it turns out it had only been on four trips to mexico which could be as few as four different defendants and one had only been about corruption but there that it wasn't directly put to the expert on cross and drawn out the extent of the experts experience not only as an investigator in mexico investigating how operate in mexico but also about his experience with social political conditions the conditions the environment in which an ordinary citizen in mexico might perceive a threat i'm going to i'm going to move on that the government agrees that the the both of these issues the seven afford to be issue with respect to this particular phrase almost nil and the qualifications matter was were both preserved at trial and so the government has the burden to show that those are more probably the not harmless and i can't do that because this witness was so important i'll move on to the denial of recross issue obviously is this was a dress case but the government chose to also ha expert witness testify about unknowing couriers about blind meals and it in an underactive got several page of the transcript about talking about blind wills and equal number of pages talking about dress and the direct examination of this expert the jury could weigh the experts testimony about blind mills and his credibility about blind mills in assessing the credibility of the recipe it did at the blind mule defense is inherently inconsistent with darius isn't  government decided to go there and the the th amendment violation occurred in this case the denial of recross because no matter was elicited on redirect on cross examination defense counsel tried to elicit from this expert what is a basic fact that we all now know that blameless do exist and that would have shown that traffickers don't always use paid couriers they don't always use trusted couriers and the expert said and counsel put the expert directly said he was a bomb you know he he denied knowing what was said he was threatened and his family was threatened right that's true but when the when the witness then on redirect for the st time walks back that's nolen says of the thirty or forty cases that i've been involved with that involve the issue of blind meals all except for one of those we're not blind neal cases all except for one we're not and so he's strongly suggesting that he's aware for the st time of one blind mule case and defense counsel asked recrossing that matter it was tonight the that recross would a pointed out several things number one  so crucial it would point out also that because this expert based at least in part his almost nil opinion about the rest on the fact that the use of blind mills and course careers involve similar risks if that is that has to admit that well ok there are some blind real cases that it certainly looks like the like the likelihood the traffickers would coerced somebody is great in fact greater than zero and so it went directly to the blind militia to this i'm sorry to the dress question in this expert's credibility i see i'm running out of you issue in this case in terms of the case i did i was asleep i was lead counsel in this case i think the government lawyer in a case like this and is in affirmative duty to protect the record absolutely your honor then why didn't you tell the judge steps when the defense asked for recross we have no objection in terms of the recross examination question because the video the question on the redirect did not raise a new matter that had not been heard or does or not you know that's your responsibility you're in front of the panel here are three former prosecutors and why couldn't you just say no objection you are not going to be heard by every us right no your honor and as the government pointed out this would not be on a  material matter or a new matter the the testimony from agent hall and redirect was clarifying or i guess explaining the context of his answers on direct examination and cross examination  about the investigations the thirty to forty investigations that he had handled involving claims of blind meal and then on redirect he answered that of those cases eleven dollars did involve a blind mule so is the government's position that the matter a on the blind real issue had been clarified sufficiently and i would i would point out your honor in terms of the direct examination of agent hall the focus of that examination was a broad overview of the drug trafficking organizations modus operandi so in terms of direct exam counsel rule seven hundred and two c is not optional for the district court and it provides that the district court in order for expert testimony to be admitted it must be the product of reliable principles and methods is there any place in the record where the district court made an explicit finding that the almost no testimony was the product of reliable principles and methods they qualified yes your honor they would say that the qualification that the almost no testimony occurred after the qualification of the witness that is there any place but i mean that was part of what the objection was that was part of the daubert objection so is there any place for example where the district court even uses the word reliable i don't believe i don't tell me or tell me what your view is as to the best place for the government in the record where the district court made any kind of rule seventy to finding in terms of qualifying the best shot at saying here's where the district court made any kind of a finding that this task that the testimony of agent hall was the product of reliable principles and methods it would have to be the a the ruling by the court in which the court concluded judge that is concluded that the objections to agent hall's testimony went to the weight of the evidence not necessarily his qualifications to testify i would say that that would be inherently it's implicit and inherent given the whole record absolutely all of the lawyers in the record were the district court said i find this expert witness to be reliable motion to exclude agent hall as a witness is there any place in our case law that you can point to where we've had all the daubert is satisfied simply by a court saying your objection is over ruled as opposed to explaining even in the most cursory way how the testimony is the product of the application of reliable principles is objection overruled i know if to demonstrate that the district court has appropriately exercised the gate keeping function yes your honor and i would i would point the court to the hankie decisions and other authority cited in the government's briefing that are taking place the point that the district court has in terms of a case by case approach that again the district court has wide latitude on qualifying the witness and that includes the mechanisms for  or inquiring whether this witness has expertise to talk about the subject matter in this case drug trafficking i mean what i mean what i'm additionally troubled by in this case counsel is  r to afford a two of five although the district court doesn't come right out and say it and then you can almost read this as the district court saying that kumo tire daubert doesn't really apply and i case such as such as this i mean that's not what the district court exactly said but the district court says i don't believe a daubert hearing is required particularly in light of the issues that were raised in the hearing of course there was none about testing and such that don't apply to experts such as age and haw i mean with that your view is still objection overruled as enough reliability depends heavily on the knowledge and experience of the expert rather than the methodology or theory behind it in this case your own or the subject matter or the qualifications of this expert turned on his specific knowledge of drug trafficking ok so what they want to do tell me what in the records specifically demonstrates the reliability of a testimony that  the using duress mules in this case is the product of reliable application of methods what was it in the record from agent hall that established that he was qualified to testify to the conclusion that the chances of using someone like this who was who was doing it as the product of darius was almost nil what what in what did he say from which we could conclude that that that expert opinion testimony was reliable the government would emphasize the agent hall's testimony about his experience in controlled deliveries undercover work in which  drugs were loaded in mexico and i would also direct the court your honor to e r to ninety two and two hundred and ninety three where he specifically said that he had not seen evidence of the use of unwilling core years so based on that prior testimony the foundational testimony of his nearly twenty years of experience in law enforced federal state tribal combined with his experiences interviewing people in mexico when he said he hadn't seen it what is what does that mean i mean how would he know in every case he was involved with whether somebody was  someone who was a courier under duress or what was his testimony as to the fact that he hadn't seen it meant that in the cases that he was involved and it wasn't involved and there that there wasn't this type of coerced c i would say it was reflected on the fact of his experience investigating international drug trade he commented extensively on the interviews that he had conducted with drug traffickers in mexico he commented on the fact that as a supervisor he received briefings from his agents and subordinates other agencies involved so this comment is coming from that expansive knowledge his background investigating international trafficking involving mexico and the united states so this isn't just a comment that is without foundation it was based on this wealth of experience of thousands of interviews with drug trafficking members interviews that included people caught smuggling drugs from mexico into the united states so those are those are the important foundational points that  i guess the government presume that the right of reliability analysis had been conducted through the overrule the objection the fact that during the pretrial status conference this issue actually came up in terms of what testimony would be introduced from the government experts and the district court asked numerous clarifying questions i didn't think it was necessary excuse me or on the like you didn't think it was necessary on that point your honor that government thought that the record was well developed from these pretrial proceedings the qualification was you one of the one of one of the attorneys in that courtroom you were the government yes  this not of agent hall the foundation came through his testimony before qualification but the but the court was certainly saying there would be and then the court denied  or is that a standard practice i ask your colleague is that a standard practice in the district of arizona that there is expert testimony or requests for vardar a trial that's routinely overruled i don't know i don't have a good answer to that wasn't there wasn't anything new raised in the redirect examination that would require recross examination and certainly on this record there would be harmlessness given the fact that this was not a a blind   the jury instructions were not misleading and indeed the parties were under the belief that the instruction could cover threats of violence to the family members and that both both sides made arguments based on  begins with his rebuttal we have a full house today obviously so as soon as mr morris done i would ask any court personnel such as law clerks to go ahead and sit in our jury box and if we have any lawyers who are licensed in this district to go ahead and move up to the seats in front of the bar we have a gentleman over here thank you for doing that we're trying to make it more coffee before the in the audience bookers mr abney but we'll do that after that we'll do that once mr moore witness about the inconsistency to ask him to explain it and to point it out the th amendment applies the government argues that plain error applies here because there was no contemporaneous objection but the objection was made at the st opportunity to do so excuse me the request for recrossed and that was after the witnesses testified on redirect and while the parties were at the bench settling discussing jury questions that's when defense counsel stated almost precisely what the testimony had been on cross versus on redirect and asked for recross and the district court denied the matter that was a timely objection and it was an objection that implicated the th amendment the request w recross but the th amendment is the only provision that requires recross there's no rule in the federal rules that specifically addresses recrossed and so the objection or the request for recross was preserved and it was preserved on th amendment grounds even if the court thinks it wasn't there was still an abuse of discretion in denying recross examination because the district court's finding in denying the request was clearly erroneous the district court looked back at the testimony and cited cited one aspect where she thought the the witness that only testified that he never testified in a blind real case well it's plain and it's error because several lines down  transcript the witness is asked point blank so you're aware that blind knows exist and he says i'm aware that blind those are claiming he did deny the know that knowledge and so the district court simply erred as a factual matter  to go back through the direct testimony and see if something new was brought up but well that's exactly what the district court said she would do she said i'm going to go back and look at the record and look for this and then there are references to her looking at the transcript as she volunteered to do it she volunteered to do it and then once she did it and said no i didn't find it to to push it more would have amounted to the defense counsel saying oh well iran judges in there go back and look again i mean the judge ruled at that point no exception was i see i'm about out of time last point you can make it right now the government argues that hauls was qualified based on his experience and knowledge because he hadn't seen evidence of duress you know i haven't personally seen it either doesn't make me qualified because he interviewed hundreds of people i've interviewed hundreds of defendants it doesn't make me qualified to say that their claims are not true i thank you very much counsel perceive and i thank you both for your argument this case this matter submitted