the assistance of experts at the government's expects and the criminal justice act of course was and acted to comply with the six amendments requirement that council render records effective assistance of counsel and the standard that this court uses to determine whether or not a defendant is entitled to an expert who is twofold st is there a reasonable probability that the expert would be of assistance to the defense and nd would the denial of the request result in either an unfair trial or prejudice and i submit the record in this march of two thousand and seventeen this trial was may of two thousand and eighteen but if you go through the docket in the timeline you'll see that this case is extremely unique for a number of reasons notably i would point out that initially a public defender was appointed to represent my client retained private counsel in the spring of two thousand and seventeen shortly thereafter counsel filed a motion to question my client's competency and judge walker agreed that there was reasons to believe that my client may be  incompetent so from that that decision was made in july of two thousand and seventeen so from july of two thousand and seventeen to december two thousand and seventeen this case was on hold while my client was being evaluated for competency it was an intel december of two  and so the time between the counsel's appointment and the trial was only four months january to may in that time period more things happened and again going back to why this case is so unique my client does not speak for his st language is not the english language the judge agreed with that and the judge appointed an interpreter so new counsel obviously had to begin the conversation with my client can only do so through an interpreter and i can tell you by experience i've had to go through the same process on appeal there's been delays in the breeze been filed because it was very difficult for me to find an interpreter throughout this case to be able to get on the phone and allow me to have conversations with my client and interpret those conversations in march of two thousand and eighteen shortly after the appointed counsel b j council was brought into the case my client file the motion for the appointment of investigators and other experts he then filed the forever motion and that's ready think reviewed not take place until april and then again this trial curt the next month in may so i think the combination of those factors new counsel having only been on the case for four months and because there was an issue regarding the language new counsel was not able to find out about this until the morning now regarding the substance of the tax or why you know kind of more understand why this would have made a difference i note that in court as i'm sure aware of this this was brought up through my client's daughter who indicated to the district court that she had a background in computers and electronics communications she explained that she had downloaded the e mails from my client's account he compared them to the e mails of the government was relied on which were the e mails that were obtained from the eighty's she said that there were e mails in the government's account that were not in her father's account and that's significant and in particular when she was talking about this and this is on so i think his testimony goes hand in hand with if the defense could have established that that e mail was never said by the agents and the daughter again it wasn't as clear as a daughter and that's part of the problem here what did he say what did he say  honor i'm not an expert the district court's got an expert no expertise look at this so if if there is the ability to establish that some of these e mails were not sent or were not received by my client i think that potentially cause all of the e mails in the question and the only way that i would know how i was of defense attorney so you look at i mean i would pretend to give an opinion as to whether or not it impacts the entirety of e mails or just a certain number of them only an without knowing without having an expert review this we don't know which e mails were sent to the extent that the defense get established that it wasn't clearly indicated especially someone to me that's because the language that the person that's doing the communicating is a minor that would be a big issue for the government was not properly received by mr crimble that that could impact the defenses that he's raising and ultimately there are some other factors in this case but i still think this is an email to the communications the electronic communications a stablished the basis for both counts in this case this court to not release because it said that the thing that the defense was trying to establish and policial it was an m r i regarding the back and ran check it was mental health information in both cases the court pointed to the fact that the defense already able to put on information from an expert to establish either the back injury or the mental health issue in this case the defense was unable to put on any of that you have a government witness who claimed to be an expert in forensic extract the morning may please the court this is jordan learns on behalf of the united states i think i'd like to begin by emphasizing the narrowness of the district court's ruling in this case it wasn't that purple could not present his defense that or a going to continue trial the morning the trial was set on the ground in order to facilitate an expert brought into the case and so i think i would disagree with any suggestion that an expert was necessary even to present this different i want to go back to mr reference point about asian credos testimony i don't think he was qualified as an expert he did testify that he had some background experience an extraction  devices but that wasn't really in the context of discussing e mail evidence that was fully about the extraction of the cell phone which as we learned for his testimony did not yield any e mail evidence  much more than we found some that were missing the other point that i would make is it's difficult to assess how impactful any expert testimony would have been without knowing which twenty nine dollars communications were were alleged to have been missing from the exhibit early somewhat purple over printed out from her father's account and i think what's clear for more an ag is that it's really incumbent on defense counsel to articulate it precisely why the expert is needed and how it's going to factor into the defense and so i think it's incumbent on defense counsel in this case to articulate specifically what is alleged to have been missing that would have factored into the defense or into any proposed or you know defense they'd like to explore i would also go for the court that this because it was actually its exhibits because it was just simply wasn't an issue at trial and so i think you know in light of all those factors it really is incumbent upon cripple counsel to specify how you know how this you know any expert tha speaking is going to factor into the defense that he intends propose and i think when you look at the trial record i think it's clear that you know challenging the authenticity of the government because it really wasn't going to be a factor of crippled defense either way  and that makes sense when you see you know have proposed testimony played out his testimony was essentially it was my roommate and i wasn't really involved in those communications and yes i drove him to tallahassee but we didn't know that you know it was a minor i didn't know that it was a minor so i think it's incumbent upon defense counsel special under more you know it's not a it's not a fishing expedition you are entitled to an expert just because you think you may you and it was i think their language was a significant or substantial factor trial and we don't have anything here conclusively in the record that says that any expert testimony even even if it substantiated the th mutations are missing from cripple side of the conversation we don't know those twenty one thousand patients worse there's really no way we have an idea of maybe some of them and i think the district court found that they were the smoking gun statements and i don't think getting on the record that contradicts that and i think  that point if defense counsel disagreed and thought that maybe it did implicate some of the smoking gun statements it would be incumbent upon defense counsel to say that and what it means when he made his motion and essentially the motion i as i recall it was i would disagree the district court didn't find that to be an issue there are certainly some comments in the record where he says had this been truly newly discovered evidence you know it would be have been characterized differently he definitely expressed the sentiment that you know this had been fat on he said that the e mail account had mission i think based on timeliness but i think it's clear under the law in this the motion was a time when the district court did not abuse its discretion by denying a mission that's presented the morning of trial and i would say that this court can affirm for any reason that supported by the record and i think here the testimony judge walker actually he yes after two previous trials from the same operation so he wasn't he hadn't seen the government's all the government's evidence in this case but he was very familiar with how the government's presentation would look like and in particular with this exact operation operation keep it he was arrow artist or took a number of cases to trial on this and judge walker heard all of them and at least two of them went to trial before people say i can get the court to appeal numbers for those that they would like them so judge walker had a pretty good understanding of what the government's presentation would look like including that we would be using e mail evidence from undercover chatters and so i think in light of that understanding and what everything that was put on the record i don't think this court can make any finding that judge walker clearly air than any of his conclusions about how provoke a proposed testimony or any proposed expert testimony would have impacted this case so i think in light of all of what just judge walker found and in light of the way the trial actually played out and the fact that the government all of the government exhibit were stipulated to mean really this this was not an issue there's no the defendant simply didn't meet his burden to establish an expert he was entitled to an expert either because it would be helpful for the defense or that he would be a denied you know his fundamental right to a fair trial and again to that latter point i'd like to emphasise you know if if you know prevail had the tools available to make the authenticity of the government's exhibits an issue at trial he could have called his daughter to testify she  it didn't match what the government had and then you know the jury you know there would been jury argument it would have been done to the jury on who to believe the law but i think i'd like to make i would like to go back to i think agent crater testimony because i don't want to i wan press the court i don't think he testified as an expert in regard to the e mails the decisions i don't even think he was shown e mail communication he did testify to some degree about the extraction of the phone and that tied into its extraction expertise but with regard to the e mails the testimony was that detective clarke had been the one who had collected all of who had collected those documents not exhibit and that he had reviewed it not in the context of included a clear indication of the record miners age then they would bring the case agent and was involved in the case agent would review what the chatters you know the evidence the charges had currently collected and then just there was some questions on during the government rejected examination about whether or not even created had any reason to believe that the e mails had been tampered with or  for manufactured and he said no but i don't think he testified that he examined them and you know confirmed their authenticity and i think the only reason those questions came out is you know the government doesn't know what the defense case is going to be and so if the issue had come thirteen shortly after the indictments and if defense counsel has brought along mr purple dawdle background in computers and said i want to have an expert appointed and the district court will say give me some reason that you have to believe that the government budget is somehow modified if defense counsel document would have presented what was presented on the morning of trial from mr purple star that would have been sufficient and the court ready you're correct your honor he did say that i submit that from the two points that were brought up i think we all can agree that none of us have a concern about the difference and the one hour that was explained when there's an allegation about missing e mails and if you go through it i went through it several times certainly again this morning prepared for the argument one last time there is nothing in there after it's continued to be brought up and walker questions the daughter several times and she's adamant that there are missing e mails there's no reasonable explanation when the government was asked to chime in the government didn't get they said that perhaps something wasn't clicked on and had you clicked on it you could see the rest of the exchange that's not what she was asserting she was a sort of not that if you could click on something and see them she was a they were missing so respectfully i think i understand judge walker said that and i again submit that had this been presented to judge walker your prior it would not accept the same thing and he would have appointed the expert and  no reason to believe that the absence of manufacture you have any reason to believe that the evidence was modified or changed in some fashion i have no reason to believe it was modified or changed on a question give me reason to believe that the evidence of those e mails or any e mails were hidden from the defendant i have no reason to believe they were hidden from the he's not going to be able to do that that's exactly what we have a criminal justice act that's exactly what we have in his progeny so defendants in this situation if they have a reasonable assertion that there's a reason to get an expert they should be able to get that expert so i've explained the timeliness i don't think i can explain it any better i think these are very unique circumstances so the fact that it was brought in the morning the trial should not be up against the feds counsel or my client i mean defense counsel responded not for the st time so the fact that he had previously revealed to be exhibits he did that without knowing that there was a real concern regarding these you know communications but once it was brought to his attention he brought it to the judge's attention and said i'm moving to continue the trial and get an expert and that's sort of been what has happened in this case the only way we can actually competence in the outcome  my client is given an opportunity to have an expert review the medications and either present a defense based on whatever the expert says or not but at this point we simply don't know and my client has been denied a fair trial as a result of that so i asked his court to reverse thank you