he had an insanity defense yet addressed defense both presented prima fascia evidence that supported both defenses and he should have been given the right to present those defenses in fact mr bacon still felt so strongly about it that he still to stand the court before taking the stand stated that the court said that he had no idea what he was going to say that's not true we already knew what he was going to try to say he apologized on the stand he'd already apologized to mr greco beforehand the court then allowed the prosecutor to impeach him with five prior felony convictions mr bacon was not allowed to testify as to why he apologized why the attack happened i understand judges are to call balls and strikes i appreciate that but to take the bad out of the batter's hand and then allow three strikes to come right down the middle but in this case five strikes and then point to the box score and say that the case is over he deserves ten years in prison it was unfair my knowledge is strange but the trial was strange and unfair maybe you can address on the insanity defense i think i can't remember if the district court put a lot of weight on this but certainly the government does that your expert was not willing to say what that's the full extent of what needed to be said in order for this defense to be viable and it seems to me that was of some significance maybe you can address that the government says that as well as the district court would say repeated the expert would not commit to saying that mr bacon was an able quote unable to appreciate the nature and quality of his of the act and i kept pointing out as i do in my briefs and to the district court that rule seven hundred and four would have prevented him from making such a statement a statement as to the ultimate conclusion is for the jury to make the district court on that specifically ruled that because your expert didn't reach the ultimate conclusion in his report that his testimony was irrelevant that's right the government had followed the daubert motion and bit or at least what i would call a daubert motion but if if i'm reading it correctly no part of the government's motion was the ground on which the court ultimately excluded your expert is there are i don't think so if i remember right the government also was going to that point seizing on that he mr dr crane had not stated conclusively that he mr bacon was unable to appreciate the disorders the b o p records show that since two thousand and five the b o p had known of these mental defects and disorders both before the offense after the event the district court and so d had concluded that he would have difficulty appreciating the nature and circumstances of his act but still and this is my point if dr karim had stated in his report that the defendant w even if the defense is even if the evidence is weak insufficient inconsistent or doubtful credibility the jury's still entitle to make that determination not the court not the district court the district court precluded both defenses before trial and so unfortunately a trial again like i've stated was unfair the district court in fact made statements before trial that this was a straightforward case the defendant had made a statement  and i've already pointed out in my papers the hostility towards the defense the direct address defense was also we felt viable and the jury should have been allowed to make the determinations as to the in support of the defendant would have testified that he could not go to a correctional officer and ask for a transfer or ask to be put in protective custody because he would have testified that the prison gang here would have people would still be able to attack him if he was in protective custody or if he transferred to a prison and to my point even if that is weak let the jury decide that not the district court beforehand stand as both the judge and the jury and weigh the evidence as to the viability of the defense there was a immediate threat that's what mr bacon would have testified to he would justify that he had no reasonable opportunity to  escape that threat and that it was a credible threat as to all points mr bacon was going to testify to those and the prison expert the prison expert who is a former b o p correctional officer an associate warden would have also testified that  there is such a thing that prison gangs have ways of reaching people that refused to do the crimes that if they're threatened and refused to do what they are told by the prison it strikes me that our circuit precedent alternative somebody is holding a knife to my throat well in this and i agree i agree that he should have been allowed to lease present the defense he's satisfied we presented a to all three elements also in support of this the victim testified the victim provided evidence both an audio recording and a written statement in support of mr bacon sentencing which reflected the same points he said that the prison gang had threatened him and the prison gang had threatened to assault him if he didn't commit acts and that he felt that mr bacon was tricked taken advantage of committing these things and he hurt and he held no ill will towards mr make it so all these all this evidence reflects that the defenses were viable and should have been allowed to present it to the to the jury we asked that the case be reversed and frankly and respectfully be designated a different district judge thank you thank you very much hear from your counsel for your clear as applied to this case for aiding and abetting liability at the time daniel ray placed the book on a table in that pod the government needs to prove to sustain a conviction that daniel ray knew there was a knife secret and that book and the government had to prove beyond a reasonable doubt that daniel they knew that patrick bacon would then take that knife and stab anthony greco with it on those two critical points the government has offered nothing and there's insufficient evidence to sustain his you know you can it's subject to different interpretations but there's the point at which trying to keep the names right mr big in his seat at the table yet because with that yeah and he's trying to be struggling with the book and he kind of looks over at your client as though for help and your client kind of starts to walk toward the table am i remembering that right well i don't well i don't know how you get looks for help i think he's looking at the book i don't i don't get that but yeah ok i'm not talking about how if i had been a juror i would interpret the video we obviously have to construe in the light most favorable the government seems to me a reasonable juror could look at that video and interpret it as one guy struggling with a book that had been handed to him by your client right looks over like hey what the hell and your client then starts coming over as though to provide a system so that to me was the or if we don't use well i think the problem i think the key fact and here here's here's i think with the case goes right for the government no matter what and based on how they chose to prove it a didn't choose the book if the government had presented evidence that daniel ray went into his cell and selected what we did and that's the book with a knife there is they've got inference inference is deduction from facts inference is not speculation and if you look at the ear as we look at their argument it's rife with speculations like a very damning concession in my mind because if i remember what happened was he didn't actually enter the cell he kind of reached into his cell mate handed him  book that is correct why couldn't a jury infer that there was already some communication between the two of them as to which book would be handed to you because that's the definition of speculation so what's the conversation you want to tell me how we're making deductions and i would ask your honor to look at the commentary through circuit  instruction one five so there was no prior conversation between your client and his cellmate he reaches then and your cell his cell mate just knew somehow oh you want to book there is a dead maybe a prior conversation but now we'll talk about now it for maybe the water came from the hose but we can say we wake up well maybe there's a hose maybe at all that most houses have hoses maybe he was watering his lawn that's where we get to speculation was the conversation at the door said you're here i'll take you to him those are all maybes that speculation i confident the four of us can get together about a one million facts go back to the point i was raising about the seeming look to your clients for help when struggling with the book why wouldn't the jury be able to infer from that alone that your client knew that there was something secret in there and that the person he wanted to take it out was having trouble and he was going to go over to help i don't think a look this says help me stab the greco and that's what they had to prove to be a reasonable doubt i think it's help me get this thing out of the book that you're simply you were supposed to have supplied to me that i can't get out because of course you know what i'm about to do with this able to infer that if we handed a book with a knife to someone there handing the i think the choice of the book and i think this is the reaching into the door what does happen again what it's inference is deduction from known facts the government could have introduced a ton of more fact it was chosen not to come in when but with the facts of the video it's only the video the guards only talk about red and we know if you go to mere presence isn't enough so even if he's walking to the table he's not actively participat he's not making the choice of the book with a weapon in it he said he's getting a book that someone's telling him he's passing the salt at the table maybe it has signed i did it i don't know but the act of passing it's no i'm here you know i  that's perfectly fair argument i guess i just come back though to the point in the video that i stressed at the outset and i guess you're just saying that well judge you look at the video and you interpret it wrong and i never looked at him for help he was not walking over to provide help is  established that mood of what recognition is we have recognition right now absolutely but i know that the deal your honor that's speculation why he's looking over and it doesn't establish he knows he's going to stab greco where is the evidence that daniel way want to know that there's a knife in that book that mr bacon is trying to get out i think you can piece it it's not speculation at that point that you can piece together that oh yeah he knew it was about to go down especially when i remember he then knew if a jury could fairly infer from the video that he knew there was a knife in that book there it's not crazy to to assume to infer as you put it that he then knew that what was about to happen once the knife was taken out that doesn't strike me as crazy at all rather i think in order to really examine the issue of reliability i think it's important to look at what the opinion that was proffered in the report submitted to the court by dr kar the exact opinion was that someone who was quote suffering from the myriad of severe mental health disorders that mr bacon was facing would have had difficulty understanding the nato council and its that's not actually i don't think the opinion i think it a page twenty of the final report based on the above i would conclude that mr bacon was suffering from a myriad of severe mental health disorders so he doctor said that's his conclusion plus as or so so then he goes on to say therefore he would have had difficulty understanding the nature and quality of his actions at the time of the offense conduct due to a period of psychological decomposition and then he adds two sentences later this resulted in mr bacon living in an altered reality at the time so he is why couldn't be surety if they're hearing all that and hearing the other evidence but the psychiatrist in testify so i understand at the hearing so this was just done on the papers no one said well why don't we just asked the doctor what he meant by difficulty which were if you had challenged on those grounds from what i can see in this report there might have been some problems with this report but you didn't but the court was was  exercising its gatekeeping function but i have to respectfully disagree with you by reading what the court said at page twenty one of the transcript the are ninety five the fact that dr karim is unwilling or cannot of pine that as a result of the mental health issues he was unable as opposed to difficulty understanding to appreciate the nature and quality of his acts does not satisfy the threshold standard of relevance i mean that's the entire basis of the court's ruling because dr karim was unwilling to issue to right what rule seven o four would have prevented him from testifying to that the whole testimony was out and i just don't see what the what the legal basis for that ruling is i agree that there are there are some potential issues with this report but that's not the basis on which the judge ruled that the judge also indicated that he believed the opinion and unreliable well show where if you give me a moment the court's indulgence your honor i mean i think you're probably referring to our ninety seven but that's correct but i don't see that i mean i see that he says that which i don't understand the court finds that dr chremes opinion violates rule seven o four which i don't understand how the the opinion could violate rule seven hundred and four but i don't see anything on that you i don't want to distract you by looking no i understand your honor but we leave the record does show that the district court indicated that he believed that dr chremes opinion was speculative and unreliable and we believe that that was that was correct because if we're talking about reliability i think we do have to look at again what that opinion was and the opinion was that mr bacon would have had difficulty understanding the nature and quality of his actions full stop dr karim had a choice under the i d r a in terms of there's two prongs that congress has said stab is could could potentially establish the insanity of a defendant one that he didn't appreciate the nature and quality of his acts or to put it in appreciate the wrongfulness of his acts but in this instance what dr karim said was that  mr bacon was it unable to appreciate the nature and quality of his actions again full stop so i think if we look at that from any perspective psychiatric legal commonsensical the notion that someone is u nable to appreciate the nature and quality of his actions in this context is remarkable because the actions in this context were mr bacon took a prison made knife and brutally stabbed another inmate for nearly a minute counsel if i were in your position at the trial level that's probably exactly what i would have been saying at closing argument and talking about the preliminary things in the doctor's report about the prior experiences with shanks but in closing argument i mean do you think that the government's position that what the district court said was because on dr karim didn't a pine on the ultimate issue his opinion is not doesn't meet the required standard of relevance this is the position of the united states that that was on our ninety dollars the sort of nd full paragraph from the end of the page that that was a correct statement of the law by the district judge we believe we believe that it is and we believe that it's understand the nature and quality of his actions that that's the only thing that would have made that testimony admissible no your honor because because there's there's there's two prongs here that we're examining and i think going back to reliability  it was the defendant's burden as mr bacon's burden to establish the reliability of dr karim's opinion and again the actions that we're talking about here are the actions of stabbing another person for for nearly a minute and in dr karim's report there's there's nothing to support that assertion there is there is nothing within the report that documents the steps that dr karim took to arrive at that conclusion so in other words dr karim says that there's a myriad of disorders i think if we look at the reply brief for mr bacon what mr bacon is now kind of was severe i think that's telling in so far as none of these other quote myriad mental health disorders are characterized as severe anywhere within the report with any specificity  come back to the point to judge bennett keeps emphasizing which is i don't see and i know you say it's there but i don't see where the district  judge made the kind of finding in ruling this out that you are now saying he could have a baby he could have but i don't see where he did it again it's we believe it's at your ninety six that that th dr jasmine jones who i believe in two thousand and fifteen provided that diagnosis if you look at g r three hundred and twenty four dr jones indicates that she actually never met face to face with mr bacon so she renders this opinion without actually engaging in a in person interview with mr bacon and i think that's problematic in and of itself i think the a p a would probably describe that as armchair psychology rendering an opinion soley based on what other people have said i'd also know parents that equally that the d s m five requires five symptoms  based his his opinion that the severe mental health disorder was swiss schizotypal personality disorder you can see how the district court would be concerned about how he got there  because again there's there's no documented reasoning process saying if schizotypal personality disorder is the severe mental health disorder that caused him to have difficulty counsel you're correct on your ninety six  on the ultimate issue maybe what you just said in the last minute of your argument would have been an acceptable basis for the court to exclude the report but the court said none of that i  think it was it was certainly in the lengthy kind of dissertation that the district court held forth on regarding dr karim to report that's that's a logical conclusion to make that it's unreliable because he points to to some of reports it's glaring that there is no documented reasoning process i think we would be in a much different place if dr karim said schizotypal personality disorder is a severe mental health disorder m five requires there to be five symptoms present in order for there to be a diagnosis of schizotypal personality disorder based on my review of the records based on my in person interview with with mr bacon based on my review of the discovery in the case here are the five symptoms that i believe are present now based on those five symptoms here are x number of learned treatises here are x number of studies that show how those symptoms could lead to a person having difficulty understanding the nature and qualities of his x again that extraordinary assertion that  person doesn't understand he's stabbing someone else when he's stabbing him furthermore it would have been helpful had dr crane been able to say not only are these learned true there are these learn to treat disease not only are these studies i have my own clinical experience showing that those five symptoms in my experience i've seen that where individuals with those symptoms have had difficulty appreciating the nature and quality of that's not said so again at the risk of beating a dead horse where in the judges to sedition are the points you're now making which have a lot of you know facial literally but where does he say it's that you're ninety five and ninety six i believe again your honor where there's there's this discussion that this is speculative because it relies solely on the word of dr karim and it does when we're looking at this particularly from from the perspective of the judge's gate keeping function it's totally speculative that there's there's nothing presented other than to say based on the above given the above and and that's insufficient under this court's case law for counsel i mean i just i don't see that in the court's ruling but if the court had ruled the way your argument was then theoretically the defendant would have had a chance to come in with an amended report theoretically i don't know what the timing was but with the court saying unless the doctor is willing to connect the dots and specifically upon that the defendant lacked the ability to appreciate the nature and quality of his acts the testimony is irrelevant i mean there's just if the if the doctor can't say that the defendant has nothing they can change the report to i would i would stand on our arguments about the unreliability prong this and i would also point out that i think the argument about seven o four in the context of this pretrial examination of dr crean's report is is mis guided seven o four is is a rule that's operative with testimony at trial and this was really the operative rule in this particular area was one  ten for a allows the court to make problem in every determinations about the qualifications of an expert or the admissibility of testimony without regard to other rules of evidence and that's what the judge was doing here under his gate keeping function so in this instance the the testimony was unreliable and whether whether we would have objected at trial ruled as he did did the defense at any point say a judge we'd like to call the doctor for a pretrial hearing because your term we think you're  report or something like that no they did and they absolutely could have could have asked for that because it wasn't their burden to establish relevance reliability and i have a minute and a half left you're on i think some extra time i think we want to hear from you and so i point out something else with with respect to the reliability problem in terms of whether this is speculative what courts have looked to as weather experts ignored obvious alternative explanations for the behavior that's being opined on and what we have here with mr bacon is an individual who had twice been convicted of violent assaults who after the assault place sat down for an interview with an f b i special agent and gave the f b i special agent the reason why he assaulted greco he said i thought he killed a two year old kid i thought he was potentially a scumbag and that's why i did it so so the district court knew that because that was submitted to the district court prior to this ruling taking place so the district court was again justified to look at that and say that  opinion was unreliable just with the last remaining time here i do want to address mr ray's argument your honor judge watford you pointed out that there is this moment in the video where mr bacon looks over and we do believe that that was the direct evidence from which we were able to argue and convince jurors that there was sufficient evidence for the conviction but there was more evidence than that what else so does that seem to me the best that you have and you know i hear counsel's argument at that time i'll go back and watch it again that's a pretty thin reed on which to rest a conviction but so what else do you think you have besides of that so what the jury saw on that video was that before mr bacon inch or housing unit to be mr ray was loitering kind of aimlessly on one side of housing units when mr bacon appears at the sally port he rings  doorbell when that door bell is heard you can see immediately that mr ray shifts and with purpose walks towards the sally port as if he's expecting somebody to arrive when mr ray a ride at the door to the sally port he sits there and waits a couple of inmates walk past mr ray as he ignores them but then mr bacon walks in and mr ray immediately rendezvous with mr bacon as if he was expecting him to arrive and then i think respectfully what counsel ignores is that there was testimony from the officers about was what mr bacon was saying in the presence of mr ray and mr bacon is saying i've been assigned to housing unit to be and that was a lie and there's actually a moment and we argued this in our closing where mr ray appears to point towards cell one hundred and twenty two which is the cell that mr bacon said that he was assigned to so we argue that in closing and respectfully i think that the argument that's presented by defense counsel at this stage is an argument that was for the jury pre conviction under jackson  you your honor the government's discussion here about the d s m five factors is was not done at the district court level it's not in their answering brief it's too late and frankly that was what would have been possibly appropriate as to an argument to the jury but of course we didn't get there the judge excluded our defenses because the government moved pretrial eliminate excluded the judge excluded it for the reasons we've discussed here it's clear there was no evaluation or discussion of what the judge is saying he reads the conclusion is being judge we proposed to call the doctor to have him testify just to clear up any misunderstandings your honor may have you didn't do that right we didn't do that  we had a preliminary report i thought i recall the judge didn't feel there was a argument or discussion as to that not being sufficient so we provided the supplemental report the judge of course found that insufficient for the reasons we've discussed because the conclusion wasn't good enough for the judge so no we didn't call him because i didn't think it was going to make a difference the judge already excluded him his decision was final he repeated that we are forty one he didn't allow us to present any insanity defense which of course the insanity defense does not require an expert to testify you could still present insanity defense at trial albeit it would be a weak one if you don't have an expert to support your defense but the judge said forty one sorry you are ninety five you need an expert to get that before the jury and so it excluded the expert for the reasons we've discussed importantly rule seven o two our expert dr karim satisfied with seven o two he was a licensed clinical forensic and clinical psychologist from university of cambridge he did as his peers did which is review the mental health history he personally met with mr bacon and so this notion that it's only based on dr chremes word is not true dr kramer relied on beal p clinicians which had found that he had severe mental health disorders both before and after and the core unfortunately said that if i paraphrase he didn't care what clinicians what the reports it said since two thousand and five i pointed out to the district court that since two thousand and five at least the be opiate pointed had documented his severe mental health the facts and whether there are severe or not or whether they ultimately translate into him being unable to to appreciate the the nature and  the nature of his acts that's for the jury to decide not for the district court to decide and precluded us from presenting ok thank you council so again two minutes for counsel for defendant right the one of the victim one of the men that was surrounded offered to give them free cigarettes at the point he was handing over the cigarettes one man grabbed his tobacco all three left together just noone a very thoughtful opinion establish why that's insufficient evidence to infer that the other two planned the robbery they were there they were armed they were intimidated they were clearly participating in some fill in the ferias improper conduct but there was not sufficient evidence to conclude they were in on the threat on the robbery and that's what they had to prove here in this case i think the government kind of gave it away to their big point is mr ray quote in the presence of mr ray that sylvia selected and yes to know he's going to stab anthony greco which we've heard nothing of that's what they have to prove beyond a reasonable doubt those inferences are too small the last point i'll make as my time runs down is they make the was that's a nonsensical argument and distraction is not sufficient evidence that dan you're a knew that sylvia put a shank in that book or that fred that patrick bacon was going to stab anthony greco without that proof it's of course