was not there at all she was not present and the adult prostitute her testimony was allowed by videotape that is correct and if the videotape tell me if i've got this fact right at the defense attorney was present on the videotape in cross examined but there was only one day notice of the deposition and his client was in chicago and couldn't do or didn't make it down there that is  indictment was returned in july of last december two thousand and one indictment was returned in july of two thousand and two against the defendant in november of nov twenty seventh a superseding indictment was returned against the defendant however on december sixth of two thousand and two the government moved to dismiss the charges against the defendant temperature seventeen excuse me and december sixteenth the defendant was arrested or was filed against the defendant the nick criminal complaint for money laundering and related charges  december seventeenth coincidentally the prostitute witness karmas jackson was arrested on new prostitution charges the next day she was appointed in an attorney to hold the deposition but the charges have been exhausted i guess what i'm getting at there she can't get her on another charge but at this point the government is out of juncture where they know that this person doesn't show up all right and so they've large some sort of warrant and my understanding of the law is you know most of the time you can't hold people indefinitely if there's a lesser way that you can either assure their presen somehow do that so they you know they're in a situation where you know they don't want to get out again and they want to somehow you know shore things up for trial and the question is we know that you can do this the question is how much notice do you need to give what sort of you know what's what needs to be done in terms of getting the defendant present his lawyer present right here my argument is that they didn't do enough both to secure the defendant presents under the confrontation clause and they didn't do enough to secure her presence after this deposition the defendant for example was in chicago he was notified by years of turning apparently on the his right to be back there and i don't think the court can reach that conclusion i think the law requires that any waiver of the fundamental constitutional right be on much stronger he chicago police had arrested him on numerous occasions and i think they could have found him if they had looked for him i want to know why he couldn't come to las vegas because he was indigent number one number two i think  one you can get in touch with him after the first call now based on the record we have and i've read it over carefully several times and i implore the court to read it carefully several times the und facts are that the defendant was contacted once by u s attorney who explained to him there was this hearing it's unclear how much the defendant understood of this it's or that the defendant have been told a few days before the charges  and then a few days later he gets a call that that all of the sudden they want him and he's not told how he can get to las vegas it's clear that he's innocent i don't know if anybody can make travel arrangements in one day  question williams was contacted by arthur allen the federal public defender and december twentieth five days before christmas was the day of the deposition page one hundred four of the record is that they would make arrangements but take but what they don't there is nothing to say that anyone contacted him this was on the twentieth when they said they would  probably should have asked to continue it right then but he didn't such as on a retrial and it seems to me that if i had actually been present for the deposition or if he waived his presence then this would be just like a second trial after a hung waiver where the prosecutor says on page one thirty four i would be happy to arrange for transportation for him here and the defendant doesn't say ok seven months after he was told that he was not to leave the viewers picture and it was supposed to show up and he admitted that he knew that he was supposed to be back in this particular case arrested him west intended or possibly ten days later there was there was basically a rush to judgment here counsel before you were out of time let me ask you a couple questions about the expert witness about the testimony of the prostitutes using their car rather pimps using their prostitutes babies for sexual acts and i thought that was particularly prejudicial morning daniel she's from the united states my opponent raises the issue or the that the government did not make enough effort to secure the presence of the defendant in his deposition his argument does not fairly evaluate the circumstances that were taking place at the time counsel i could get to anchorage may be on a day's notice december twentieth but las vegas no way from chicago i know the air routes are a lot better for banks alaska actually but the last i checked there's numerous flights in the las vegas every day they tend to run full at around the holiday season where i live and that's not true in the rest of the country but that's not on the record that's not the facts are there any record he could make now in the sense that he actually this is an awfully fast deposition this woman has been in and out of jail all our life two hundred pages worth of times according to her rap sheet holding her for a few days while you got him down there wouldn't be any big deal for her kind of sounds like you wanted to get around a nap before you got there i don't know what the magistra making at the time that he sat for the next day but probably think everybody wants their holidays could be but what i do know is that when the trial took place in march the trial judge had the opportunity to look backwards and decide whether the deposition was a violation of a confrontation i don't see where at work anything at all well i do the most main thing the trial judge did not have was the crawford case of course have you read crawford the recent supreme court decision about the confrontation clause app and i've read numerous commentaries and guides on it as well well crawford says there are two parts of it one is the cross examination which you had here except to the extent that williams couldn't talk to his lawyer and the other is the face to face confrontation which he did not have here and and crawford says that that face to face confrontation  critical so i i don't see how you can avoid dealing with that very serious crawford problem crawford provides that the defendant have an opportunity to cross examine does not abrogate rule fifty rule fifteen stands in the face of crawford  we have to look at what the judge saw at the time he decided to admit that video deposition he knew that's the magistrate judge on december nineteenth ordered the defen said as you've noted before your honor quite frankly my client was rather excitable i guess for lack of a better term i brought him up to date on the developments and made him aware that there was a new warrant out for him ordering the video deposition and mr williams of course which is to be present for the deposition the defense attorney explained further that when he told them about it the defendant became excitable  not an ideal waiver excuse me why does excitable mean a waiver why does it mean a waiver you seem to be inferring from the fact that the defendant became excitable on the telephone that he would not come that he refused to come president he's told that there's a warrant out for him and the defendant is excitable the defense attorney does not tell the judge at any time even after the trial that immediately after that telephone conversation with the stand that he never heard from him of the situation that had occurred yesterday mr williams of course which used to be present for the deposition obviously could not from yesterday to today particularly noting the holiday season his lack of funds had no way to be here today now i read those words mr williams of course wishes to be present as meaning that mr williams was just to be present but you seem to want me to infer that mr williams wished to be absent from the words mr williams wish to be present and i don't get it going to your actions speak louder than your words and this case i'm trying to have you focus on the actor actions and not showing up the next day are what he did when he hung up with the defense attorney on that day before the nineteenth the defense attorney reports the court is excitable and hears the fact her secret was to me what you're saying strikes me as utterly ridiculous i'm thinking of an actual human being he thinks that the charges against him have been dismissed he gets a call from his lawyer saying this thing still going and we're having a deposition of the critical witness against you tomorrow back can you be here and the guy you're saying well he doesn't show up that shows he doesn't want to be even those lawyer says he wants to be and his lawyer saying he's think and she's it's the holidays i have no money i have no reservation you then i would study my arguments we get your i thought you did know i'm trying to explain to you might the entire picture and each time i do you come back to me with that question the entire picture is this when you hung up the phone from his defense attorney on the nineteenth that phone conversation was never complete the defense attorney never finished that conversation about all the details later that day the defendant's absence of any communication with his attorney or even next morning there was no contact of hey how can i get there what can we do who's going to pay my flight instead the phone went dead and there was absolutely no contact with his attorney until he was arrested january second now it seems to be that he wanted to be here as opposed to one of the high from the last of that he wasn't arrested he would have had conversations with his attorney mr attorney i have no money how am i going to get there and if those conversations took place but defense attorney would have said to the court look judge who's going to pay for it can we get a ticket the is required to under will fifteen to pay for his travel the absence of that conversation the absence of any report by the defense attorney is indicative and the only contact by the defendant his now your argument would be good and i would be making a very simplistic and a reasonable argument if the defendant had called up as attorney and said you know what i really want to be there but help me with guns none of that took place and so when the judge gets to march thirty first and he hears nothing about the fences from the defense attorney about any of those normal reasonable conversations that are indicative of an attempt to get  we consider that he didn't call us attorney tell january second or do we just have to really look at what happened not tell the twentieth of december because you're essentially pulling in the fact that he didn't call until january second to give meaning to what occurred from the eighteenth to the twentieth when and i ask that question with this when does the constitutional confrontation issue not necessarily when the deposition is take it but when that is offered against the defendant in a trial if it was never offered a trial there would have been no harm no foul so you have to look at the trial judge's  defense attorney wanted you to look at the middle distance and i don't understand that it seems to me the depositions already happened there's just no point in calling his lawyer saying how can i get to it it's already over what's more christmas and then new years probably not going to be practical to get hold of his attorney we're having to look at a state of mind we're having to look at the defendant's intent and so we have to look at the totality of the circumstances we can't limit one day we have to look on what we know as a pattern of activity from that moment he was excitable with his attorney until the time that he was arrested didn't have any contact with his attorney i don't think that you can limit intent suppose that on christmas day he's in rio de janeiro and we infer from his presence there that he's hiding from the law that he didn't want to show up for his deposition if you had a man rio i think you could infer he didn't care to be around but he's in chicago and and i think you can infer not merely that he's in chicago but his absence of any contact with his attorney after that time he was notified of that call and told about the next day if you wanted to be there the next day he could easily have picked up and it's all over what you're going to be doing bothering his lawyer over the christmas holidays over something that's water over the dam within that's when he's within that twenty four hour period from the time that his defense attorney spoke with him there's nothing to indicate that he called his attorney back and said hey what type of travel arrangements can we make when you look at the the defendant's defense counsel's reporting to the court about him being excited i direct your attention back to  go back to that if i can if you please go back to the question of the court just before four page i'm a one twenty nine x sort of record ok and yesterday i mentioned that if mr williams was unable to travel on short notice that the court would make accommodations to have them appear either via teleconferencing or telephone conference call did you discuss that eventuality or possibility with mr williams and then comes that answer that we've discussed your honor quite frankly i didn't my client was rather excitable i guess for lack of a better term when i brought him up to date on the development when you i read that and i think it's a reasonable inference to read in there that because of the defensive side of bill his reaction to being informed of his arrest or of the pending warrant out for him that this case was being renewed it because his client was excitable and the lawyer says he didn't talk about it with them is that the support for your inference yes he said i got it ok let me ask you about something else before you run out of time i was concerned about le testimony it looked like you didn't have the fifteen year old prostitute at the trial so instead you've got a woman who talks to a lot of prostitutes who testified this is the way fifteen year old prostitutes or young ones are in general so the jury can draw inferences about this one such as that they're in this extremely dependent state on their him they treat their pimp as though he was their father as they pimp out their their pimps pimped out their own babies by these prostitutes for full h b o and even though none of this as far as we know it never happened because no one ever got any testimony from the fifteen year old that's what the jury heard about what's probably true with a fifteen year old why is that helpful to the jury and therefore admissible i did not read her testimony as being limited to a fifteen year old but more to young prostitutes miss commutes jackson the person who testified was twenty one or twenty two somewhere in that that is just not far above min was talking about juvenile prostitutes luke was talking about juvenile prostitutes probably at some point there what she was talking about generally though was the relationship between prostitutes and camps and why prostitutes have a tendency when confronted and missionary by law enforcement to lie for their for the pimp and so she was trying to explain or give the jury an understanding of the relationship of the mindset and i don't believe i don't  testimony wasn't limited to that place the statement by her was a single statement it was it was gratuitously offered it was not objected to that by the defense and the trial went on when you look at nest lease testimony as a whole her testimony was trying to explain why witnesses such as mr jackson would provide false statements about the kind that were that it strikes me that we have case law that says that's admissible but it seems like a predicate for it's admissible would be you put the fifteen year old prostitute on the witness stand and she says oh he never picked me out he never did any of these things never did any of these bad things and then he put lee on the stand and she says here's why these young prostitutes lie and give testimony that is exculpatory of their parents it's because they have this relationship and they don't like their fathers and all of the stuff that we said but since the fifteen year old never testified i don't see where you have a predicate for putting on a witness to say that these fifteen year old prostitutes through juvenile prostitutes are so protective of their pimps i didn't review the records from that light as to was in chicago he did not have the funds to come back and he did not reveal understand i think when he spoke to his counsel the importance of coming back here and it's a record is clear th counsel of jeopardy at all times to going forward now counsel may not have made a good enough record in demanding that the government issue travel passes for m that one of two things happen either as the court suggested they wanted to get this case over with before the holiday or some kind of negotiation was made whereby the only way that the witness carr mr jackson would but i may be wrong i'm simply suggesting that there was no rush to do the deposition that this time i think in looking at profit the language in crawford talks about face to face confrontation you speaking about why mr williams may not have had good communication with his attorney i don't know the reason for that i know that but he did eventually