only got started on august the twenty second of two thousand and three and early morning hours i believe it's relevant to others went out spray painted certain slogans on vehicles not the issue he issue is did he have a gross and verifiable disability specifically asperger syndrome which is an autism spectrum disease which has stark tangible for t v are has set forth various characteristics and standards for identifying and ask for asperger's syndrome two experts examined my client they both that he had as erger's one was a prosecution expert the other was a defense expert from the outset the court knew that defendant had asperger's syndrome there was a pretrial x party filing with the court explaining exactly what the defense was going to be and exactly how we were intending to present it and again it post trial the judge himself said at sentencing he has asperger's so there's no question about that both lawyers knew he had as erger's the only people who didn't know that he had asperger's were the jurors they didn't know now in this case the prosecution made three motions to try to eliminate as asperger syndrome testimony that was precluded in the court then to make things worse although a cautionary instruction was provided to the judge at that time by the defense decided not to give a cautionary instruction not to castigate the defense by saying something was improper doing something was wrong but wait until the end of the case and then just bear basically said well there is no asperger's here just disregard it in the mean time all that prejudice and you're into the defendant throughout the trial that's the status where we find ourselves right now this was a case that could easily be characterized as a rush to judgment there were multiple prosecutive errors that were made pressure on the f b i caused some of it they caused josh to know another individual who was wrongfully arrested a supposedly meeting all the characteristics of the alleged arsonist that was wrong witnesses were pressured in the case and in fact in this case the government took these witnesses statements and w do so and here is a person who believes for him to talk about it at all it would do you did so but he was a little more foolish doesn't strike me directly compelling it also strikes you possibly that he may have had asperger's syndrome and that was not at least on asperger's got nothing to do with it it seems to me when he's talking to his friends when i think your brief characterized it is as exaggerating he's bragging he's taking credit and to say later well that doesn't make any sense for him to take extra credit this is the point it's not a logical thing for anybody to do and yet he did it and with regard to sufficiency of the evidence and i expect that you set that argument up so you could get to the asperger's argument sufficiency of the evidence it's it's plain that the jury's entitled to take somebody else's interpretation of the cons of the conversation so i have real trouble with the notion that that it would be silly for him to say that you said so many things he did even some of your things by his own admission so that that would be silly for him to say that doesn't say that he didn't do it and he may be a genius the next einstein as far as we know but definitely he did silly things that's that's clear what i want to get to though and going through this is i recognize  a character who recognizes that there is a difference between himself and other people he's trying to understand what human beings are like or like to the aliens on third rock from the sun they just misinterpret misunderstand what people are with information from an individual that he believed was credible and in case in this case that individual was the person who was with him who told him that they are not going to commit arson after the first ars now remember the jury acquitted the arson that occurred on the street before they went onto to other dealerships and so there was something the jury recognized that he in their mind was not a member of a conspiracy at that point apparently they then took a look at and say well maybe it should have been foreseeable to him that at a later point these people were going to go back on their word and would not be honest with him and then would commit arsons which in is what happened is like a person who was told this is not a hot stove if this were a stove in front of me and i said i was told it's not a high stove go ahead and touch it and i touched it and i burned my hand i would be relying on a statement i believe to be true but wasn't a person with asperger's sometimes can take hours or conceivably a day or so to figure out that they were being a light to eventually the process that it's like a person who could say i know what three to the sixth power is it's a number but we all look at that it's a look at three three nine twenty seven eighty one and go up but the problem is you don't know it right away that's just a simple that's it is gullable i suppose and in some ways but it's also that you ation where the person doesn't have the ability because of his disability to understand and comprehend what the person is telling them the reason is and this is why it's so important during the trial he would be looking off into the the lights and the top of the court room while he's testifying he didn't seem to understand when he was told repeatedly he can't provide hearsay say information he would make responses and do things that were just totally out of character but that's because people who have asperger's syndrome don't look people in the face they tend to look away they don't have i contact they can't read emotions they can't not sure it's quite the same as saying not capable in these plainly capable of responding these people came by that evening he did have preexisting plans to go off like this so he was able to take it on their proposal that they go off and do the spray painting and off he goes some things he processes very rapidly and because it's not a simple saying blind you can't see it's not if you can't so you can't see in this case he can process information he can't act based on what people tell him there are some things he  plainly has difficulty understanding and that's the reason for the diagnosis he struggle with lies well he's always of people tell him to be true and that's exactly what leads me to say does this make gullibility good defense can an individual come in and say your standard bank robber we hear it all the time i didn't know he had a gun or i didn't know he's going to use a gun why should i be liable for the fact that he pulls out a pistol and suddenly i'm facing the more serious charges and we just throw  ordinarily isn't the defense why is it a defense here because this is a recognized situation under the johnson opinion as a disability which is gross verifiable there's a d m s for standard for the jury see him for what he was when when he's acting out on the stand and doing things that seem to be strange to people instead of looking like someone who was a liar the jury could say oh that's got fact that both experts said he had asperger's as he clearly couldn't distinguish right from wrong and there's no question but that's not really the issue question is one of time how long does it take for him to make a decision how long does it take for an individual for example to walk across the street if the person happens to be blind they may not see a pothole those of the problems that someone with asperger's has the jury can make of a make up its mind not saying it can't do that but it would be unfair intimidate but versus influence and that the courts flipped the influence of government vs but there was no proof of there were four special allegations which were supplied to the jury a reasoned debate is made up of of slogans painted on the side of cars and i have a little difficulty even though the issue is this is meant to to cause other people to draw back and you're just engaging in effort to influence not to intimidate and coerce that's that's a tough sell if you're out there spray painting these kind of things on cars well this is an upright and spray painting case he's charging convicted with arsons i'm trying to give you the benefit of the doubt it's arson arson i clearly not something designed to persuade it isn't a scare there's no relationship between the two that's what i'm suggesting if you look at it if if we had our first if we had pretty around the city of los angeles and other cities as well and that was associated with arson all the cities would be on fire because there's so much graffiti it's all around there's no relationship between the two and it be the same person is going it is and he doesn't if you if for a moment that he's convicted of arson we only get the sentencing if he's been convicted of arson there's no no real question of the arson wasn't a frolic that happened accidentally it was part of the same scheme at least the other two people were part of the same scheme it wasn't an accident that arson is definitely appear to be intimidation the problem is whether it's directed at his civilian or whether it's directed at a government and the problem is the court looked at it and the court made a finding and the finding was exactly opposite the cut in the case the jury case cited by the prosecution in its opposition turns out to be from the wrong circuit down there in the state there but it also turned out to to elucidate the fact that it yeah that was the instruction that was given and whether was foreseeable to an average person i think that's probably where the jurors went they'd say said well it wasn't forseeable for the first episode on the arsenic that occurred out in the street but it was foreseeable when he went with them to the average person if they had thought that he had asperger's he's quite well would not have come to that conclusion they could have and given the fact that they acquitted on that they had acquitted on that can make this argument but common sense tells you that when they all voted not guilty on that count they didn't thank he had any participation or any action that he was involved with as far as that arson on the that has to be an objective standard otherwise every aiding and abetting case that came before the court would be judged by completely and the standard of every defendant they came to this court depending on what the defendant's ability to process information was and appropriate legal measure when i wondering about is that they'd in the bet you have to knowingly and intelligently participate  and and i'm just wondering why they're so that's why asperger is so important as far as foreseeability as a defense that was crucial and it was basically undisputed typically you'll find cases where experts are going all over the board here everyone was in agreement that this  also was one of the lawyers who participated in the trial with my learned and respected adversaries mr malcolm mr wright who i also have known for quite a many years this case is a case where there are three  distinct issues as the court has recognized those three issues are different but the united states would submit that there is one very real similarity between those three issues that there is very little legal dispute over the standards to apply for instance with insufficiency that standards clear over the abuse of discretion standard to apply to judge the trial courts decision to exclude the evidence and ultimately over whether his sentence was reasonable now there there is the application of a sentencing guideline that this court can and will ensure review de novo to make sure that an answer was properly applied but with the first core issues in the case  sufficiency of the evidence and the exclusion of the message off evidence those are fact based analysis the record is where we should look i'm sure the court already has it's clear the court already has and i will direct it back towards the record of the evidence specifically i'll go right to the asperger's syndrome issue because united states agrees that under the standard by which the in the insufficiency of the evidence or the sufficiency of the evidence is judged the evidence under that standard seen the best light the prosecution the standard whether any rational jury could convict the evidence is very strong there were a long series of  admissions by the defendant when viewed in the best light admissions to his friends on this was testimony from november twelfth and of ember fifteenth that we destroyed homer's operation s u v was successful it was hard breaking the back window as he said to daniel feldman so we broke a side window he told claire jacobs that we were only supposed to burn to the fire was bigger than we expected he told s lyon that he had participated in the planning and execution of an attack on an s u v and very importantly he told the l a times on september fifteenth and sixteenth in the series of emails that i am among those responsible i am one of the true culprits at that time he was mocking the f b i for what he considered incompetence i think it's safe to say from his e mails however he misjudged the grate competence of his colleagues at cal tech who found his e mail cache within hours of him trying to say and a protected or laundered series of e mails so that evidence i would submit respectfully to th issue and one refrain that is repeated by the district court who i would submit did a model job of review providing both sides with ample time to brief both sides filed motions to reconsider  both sides were allowed to argue until there was nothing further and the district court indicated how much work it had done and research it had done on the issue that set the record the record the evidence with it in front of trial courts and juries his opinions based on perhaps outside reading of a variety of sources that are in the appellants opening brief pages three four five pages twenty seven through thirty one i use the only report that's not sourced this reference to the data from star trek not there's no source for that the atwood articles their source as if they were in a journal but that was not before the district court the district court baath diagnostic report before it it's six pages long with one sentence on the seventh page it's in the government's excerpt of record at pages one to seven e g e r one to seven i know the court has reviewed that i have also had the opportunity now to review it one hundred times but from the beginning and now today our position is not asking this court for nor are we seeking to make any broad pronunciations or pronouncements about asperger syndrome instead we had them as evolve report before us and we had the clinton report that using the excerpt of record pages one eighty to two zero three i believe the end of volume on it's a much more extensive report than documents of bob's we're not challenging the authenticity of dr as evolves seven page report or his competency the first two tests of of evidence we challenge its relevance we are challenging and maintain the challenge that's all that extra record material the slow processing like dial up the thirds of the six power at one time magazine u c l a that is not authentic evidence it is not competent evidence it was not relevant evidence it was not before the lower court except in form of argument and opinion by counsel it is not proper and i would suggest that it would be improper for this court to review or trial courts abuse of discretion standard evidentiary ruling by using material that was not before the trial court is not part of the record and the government doesn't have copies of their only references to reports and now to get to your question your honor i believe that context was helpful i hope it was and both dr meza volved and dr keenan say he has problems with social interaction dr king is there's a three to four times in his conclusions i think it yar one ninety eight zero one ninety nine doctor measure bob says he has no cognitive problems no language acquisition problems dr ms abbas says on page three of his report no eye contact problems he does report that mr patrols loving indicated when he was younger he had problems following the gaze of insurance he's had particular problems when he was young in social interaction social awkwardness social skills he's a highly functioning young man particularly in his field and more so as he got older dr keenan finds the same thing and  he became more accepted for example at cal tech he was he was a fully functioning adult no cognitive problems the issue of he can't process the time issue and this democracy referred to is not in the record of the there is a quote that they rely on in their opening brief and they rely on in their reply brief and they relied on three times in the record below it i do not like to characterize things in any sort of a negative way i can only say that that quote as we point out in our grief has no source it is a quote that is a stance of lead from dr meserve off but it is not in the record they cited when i point that out enough when we pointed that out in our brief their response was well we quoted it three times before excerpt of record one zero two i believe one seventy two and three sixteen yes they did use that quote three times before but that quote conclusions of dr king in agrees are a fair and appropriate diagnostic criteria that's appropriate the diagnostic report however dr keenan's twenty five page report includes all of his sources footnoted to a fairly well frankly and that's it that was material before this court the united states reviewed that determined as a party is obligated to do that wasn't relevant and did what i think this court has always indicated and supreme force indicated file a motion to trial hole in the line a subset of motion was filed that motion was heard on december on november ninth judge clowes are all part of the record and are afraid that judge crowds are makes repeatedly on november ninth november twelfth he makes his final ruling that's a friday in the middle of the government's case again in a new trial motion in january which is in the g d r at the end of the g d r i think around three seventy three seventy four but m intensity a point that was raised a few minutes ago by the court what i have before me is social interaction social skills gullibility a point that was raised by the court judge klausner took i think the model approach and that's not relevant and inform counsel when counsel said at november ninth before opening we can get into the syndrome we can get into the the symptoms no that's not relevant the only thing that may be relevant is it may be relevant was insufficient to face of that we i think twenty years of practice which i know to this court may not seem like a lot but it's enough to know that when a judge says you're briefing is not sufficient  and particularly now that i'm supposed to be senior would say to any counsel you need to me you get up to respectfully ask if the court wants for the briefing and if i can't imagine doing anything else and we did do that we didn't file a third motion apologized we asked for more time to brief the court said everybody can brief i'm going to listen to opening statement i made changed my mind with that i'm not going to preclude anything right now with that the opening statement was given a discussion of asperger's was made extensively by our counsel during opening statement three days later the judge had an eventual theory indicated i have now gotten additional briefing and i've done additional research to still  i think fairly calling us to suggesting everything could've been better i'm done additional research and here's my ruling it's not relevant what's in front of me has nothing to do with intent or knowledge the aiding and abetting issue your honor that you raised the court talked about it as an objective standard because the defense said foreseeability also applies to aiding and abetting ultimately aiding abetting does require knowing and intentional you have to knowingly and intent a defendant must knowingly intend to assist or push along the enterprise in which they are aiding abetting that is absolutely the law and the judge instructed on that in the instructions the instructions are in there with me e r i knew i'd make them the stake the government's excerpt of record at pages three twenty two three twenty three three twenty four the judge did properly instruct on the aiding and abetting and that wasn't  position was we thought the best position was in the evidence supported to take the clearest position which is we needed to show that he intended to enter a conspiracy to commit arson that be the first theory of liability and of course the asperger's but to a reasonable person would be clear that arson was going to take place and by the way i point out that we have the defendant by his own admission driving a carload of molotov cocktails around the san gabriel valley that evening for several hours there was a test case that's run which the defendant tells claire jacobson doesn't make any distinction between his activity and others and doesn't make any distinction for at least a month after the event between the arson and the vandalism notably doesn't make any such distinctions of the l a times when he takes responsibility and says i'm one of the true culprits at the test case in monrovia an hour later they were clipped injure and now that there's an arson there's a fire bombing of boston creamfields s u v it was not a hummer i believe it was a ford explorer an hour later there was the seven fire bombs of the hummers that burn wasn't titled we think the law is clear on this to disregard or two there were two interpretations of mr trials testimony one that it was self serving and that it was dancing along egg shells another that it was truthful the jury selected apparently the one but i also point out that raises a point i don't i believe the law is settled and has been settled for as long as i've been a prosecutor and certainly i have received this information over the years a prosecutor certainly and we are held to a high standard is not to speculate about a jury's verdict i believe that there is a strong law and that in other words the fact that the jury acquits on one count is not evidence as to the other counts at all otherwise the prosecutor could say well gee it showed that they deliberated a lot and they did their job really well which i think is what prosecutors are supposed to say after verdicts and say the right thing in other words the lengthy discussion of the jury's acquittal on count nine it was a separate count involving  a different set of a different charge the use of a firebomb of the aid of violence the jury acquitted on that they are entitled to do so we accept that we draw no inference from it we don't think the court can and then finally i point out that reasonable or objective standard not tailored to individuals and yet we do tailor for individuals the johnson case reflects or if you've got a blind man or a deaf man we don't even know the reasonable objective observer would be able to say sure you'd see that you're blind that expectation isn't there and in this case and if you said some things that of give me some stuff i want to go back and look at with regard to exactly what it was that was presented by the speak to his credibility in saying i wasn't aware which suggested the district court understood perhaps that the report only reached the diagnosis but someplace you've got to make another step that says how it would have affected this defendant so the district court seems to have filled in or at least inferred that gap would be filled in by evidence if he in fact testified and said i didn't understand i wasn't aware so as i try to figure out what the district court was doing i'm not so sure that the fact the report doesn't itself make that second step was it seemed to me the district court was mostly saying look foreseeability subjective and we're not going to to set a different standard so that so there's my is the hearing that the court is referring to the previous just before trial begins judge cause or does come out and say i've reviewed this clip clearly i find that aspergers is not relevant except it may be relevant to this issue of that doesn't go that's not before me which it wasn't i agree the court at that point was saying i'm really not sure because the briefing was inadequate what the right standard is for foreseeability but if it's subjective and the defendant testifies i had this syndrome i'm going to keep an open mind i'm a little i'm going to listen to opening statement and i'm i mean i just my ruling as time goes on later in the new trial motion the january third new trial motion which is at the end of the government's excerpt of record three seventy three seventy that area the judge has a lengthy colloquy with defense counsel over that issue where defense counsel raised an issue that as you say your honor we were confused at that point we didn't know how to proceed in the judge says pretty accurately as reflection turns out no i i said that i was go listen opening statement i said i what you asked people said that previous further i allowed that and then three days later i ruled clearly that for c ability is an objective standard johnson and that was appropriate really look at me stop right there and i realize we're going over time but i want to do this in pieces because at that point it seems to me that the judge had a mess of all report he knows how far it went i presume he probably pointed this out to him but it was apparent that it reaches a diagnosis that doesn't speak directly to how the defendant's behavior was affected by that certainly it doesn't it can't say at this particular time he didn't understand but if it doesn't say everything that's been said sense and yet the judge presumably understood that something would be offered up to that end because otherwise he wouldn't have even suggested that if his credibility is on the line then it may be admissible so what i'm really getting to is it seems to me that that the real focus here of the district cour decision goes right back to the foreseeability being judged on an objective standard and and it's almost back to the gullible version i raised earlier that's not going to listen to that and that's where you have the potential collision between what is the law confidence question which is why we so strenuously tried to get this court reporter to find and produce the curative instruction which we included a couple of weeks ago by way of motion which we think is a very thorough curative instruction to the extent that it was necessary at all the judge does say what the court what the lawyers did was proper at the time asperger's is not in front of you it's not relevant but to get to judge clifton's point the judge does indicate that and does later say the new trial motion this happens in trials a lot i have to find out what the evidence is even if he says to defense counsel the judge says even if even if i hadn't said it was tentative even if i'd said it was my ruling i'm still entitle to change the evidence doesn't conform to that so he did that that new trial motion transcript at the end of the excerpt the government's excerpt of record i think answer some of the questions you're asking but it wasn't that he heard the evidence and then decided well the defense can't link up the experts testimony to what happened because that isn't the evidence that he heard in evaluated during the first three days so i'm really getting to here is is i understand what you're saying with regard to limitations of the mess of of report but i don't get the sense of that's what the district court was putting the chips on now i think the district court i think that's fair i think that if the district court particularly other abuse of discretion standard  where as my understanding is this court was fine there was clear error of the district court's factual finding it made it may be that different judges would rule in different circumstances but i don't believe that you can find clear error here specifically where much of the challenge is is from material that wasn't before the judge what the judge did it may it may not be a clearer standard though if it if it goes to the question of of rather should be a johnson type exception to the objective standard that's that's so much more legal that is illegal and that would be only erroneous on the law you're right and that's why i'm really both of us going to the trouble of looking at these two factors because i think it makes a difference with regard to the standard to be applied we think that johnson is squarely in the  in support of the judge's ruling because while johnson does talk about identifiable gross disability johnson also finds that the battered women women syndrome which is a very similar d s m type syndrome  that on this record on these facts what was presented to the district court was not a johnson type gross and identifiable disability a doctor has evolved certainly doesn't describe it as such nor  both fine you know challenge that mr trial fit the diagnostic characteristics of asperger's there's about a few more paragraphs of discussion of that work with regard to social awkwardness and social interaction and as the judge clifton pointed out the judge trial judge said basically you're saying gullibility is a defense i don't agree that it is in the trial judge did two other things that i'd like to point out to this court that i will stop and allow my learn evidence is strongest there we think this if the support for the judge's ruling is strong is there because as the judge kept staring i'm not being offered evidence about intensity and the defense agreed on that the foreseeability is the we would suggest the crux here did the co apply the right standard we see we think he did the objective standard is this is the evidence in this record in this case enough to make this a exactly for example in a case involving the reading of documents perhaps a mail for fraud case we consider the same metaphor if someone was unable to see that could see that's the type of disability that may well be relevant in another case perhaps in another case evidence about mental blindness autism or time delay which is not evidence in this case might be relevant but in this case there's no gross and identifiable disability johnson was appropriately plot apply and with regard to your final question your honor what harm would  that is every council's decision when you make a motion for relevance we seek to protect the record as best we can and we try and do it in the best face bet best faith and the most proper method we can more importantly than what we try and do much more importantly and i think this goes back to a question you asked a while ago about prosecutors having too much power and maybe that the new rules allow judges to have more power and i practiced long enough now in federal court since eighty six when there were no guidelines so i have a little bit of memory of that time we trust the judges this to make that decision some prosecutors like myself had to labor under the guidelines for fifteen years to we trust the judges to use their discretion judge clowes or did he was neutral throughout he pushed both sides at times he made full and fair findings giving this court a lot of meat on the boats and we think when you review that you'll find that there was proper legal standards repl that he didn't have the kind of record that this court could find was a an abuse of discretion and in fact course we think he applied the right standard and made the right ruling that we didn't seek to do harm or we weren't worried that the evidence would do harm we thought that it was not relevant clearly and we made a motion as such anything else  disease or defect or other mental condition clearly asperger's syndrome is something which is in other mental condition which is is very well established there's no dispute here that asperger's exist was recognized by everybody in this case means this is the perfect case you can't find a better case in order to develop the issue of whether some sort of permission to go forward with an asperger defense exists this is that case because other cases that have come down the pike and said have one expert saying yes another say no here everyone's in agreement as it is we meant that he can be diagnosed with it but the records it'll be with regard to what that means with regard to his conduct here that's true we did explain to the court however in a motion it was filed ex party prior to the trial what it meant to say to him as far as his ability to understand comprehend and so that perhaps was what we thought was assisting the court in determining that he didn't need to have additional information provided net area because it already was fairly clear that this was a problem  experienced it was a disability that is verifiable and everyone verified it i would want to just say a couple of things about the aiding and abetting issue that was  guilty as a principal but he wasn't charged with rape meaning so it's exactly if they're going to spray painting charge that might have been different he would have been guilty of that but that wasn't a charge last however he did not commit arson so there was evidence in the record that he didn't that he didn't know what these people were going to do he didn't act to support their activity and when the court said at the beginning of the case that we go ahead with our opening statement and make the argument about calling witnesses and then three days into the trial allowed us to our didn't allow us to go forward with with any information about asperger that it was completely irrelevant that prejudiced my client wasn't fair to him well you know the issue was open i mean there are i'm going in trials where the issues are open and after that you've got to make your judgments and hedge bets and it may be hard but it wasn't that you were surprised that the judge might make that ruling but at that point we asked the court and provided specifically a cautionary instruction saying don't blame the defense attorney didn't do anything wrong in this this was  was made instead of just it doesn't exist don't consider it and then move on and we go through another week of trial and finally we get to the point where the judge then makes this statement to the effect of well don't consider asperger's in the meantime that's why it was so important for the jury to hear that if that were presented to the jury they could well of come up with a decision entirely different on counts one through eight the same condition the same you germination they made on count deserve a renae end for a new trial that the courts need help with determination of what asperger's syndrome effects will be because this will not be the first nor will be the last case to raise this issue other cases are being tried now with that is an issue and someone has to give some direction to the judges on the bench into the practitioners about what the law is and whether this sort of evidence will be into the specific effects of that but there was information that was provided by the virtue of reports that obviously had some sort of an effect both physicians said that he had asperger's syndrome th was argued to the court that it would impact his ability to in a timely fashion understand what was going on that was that was in the motions that we filed with the court so clearly the judge had to know that's characteristics that asperger's syndrome causes people to have brain burps or different problems where they don't quite understand what's going on because they don't look at people in fact these are the kind of people they give little  testify and the issue is not whether you can just he can determine right from wrong but whether there was this other mental condition namely asperger's which was a condition which caused him not to be able to come up to going forward with any testimony relating to asperger's when she made that ruling and we complied with that as we should but it prejudiced my client's case and clearly the jury was confused s relationships with people every time he's been in prison he'll seek out an arm and say you can't pass and line for gang members who are trying to cut in and because that's not right and he's experience consequences when he's changed the t v channel because they were supposed to watch the news that a particular time and other people said no we're watching our program and they all were in another gang and so he's he's not faring well so