may have please the court your honors i long with co counsel jeff ertel represented a lot of mature vich at trial where by way of two erroneous rulings from the district court he was denied a meaningful opportunity to present a complete defense first the district court erred when it precluded mr metra bitch from introducing crucial critical statements from unavailable witnesses statements that went directly to his defense when these comported with the requirements set forth in chambers the mississippi and second the district court erred when it failed to take judicial notice of articles four and forty of the fourth geneva convention when these were relevant legislative facts your honor mr mitchell bitch was accused of obtaining naturalization and citizenship by way of false representation as to material statements on his and four hundred form and to mount a defense to these accusations his team of lawyers investigators and paralegals made multiple trips across the world three times to bosnia in search of witnesses through the lead letters rotatory process and because of an existing agreement between the united states government and the country of bosnia we could depose witnesses that we found in bosnia but we could not meant we were able to depose a number of witnesses in bosnia but not the entirety of the witnesses that we located although we were able to depose them your honor and just to make this completely clear we could not based on the agreement between the u s government in bosnia put these witnesses under oath even those we deposed or swear them in any fashion and so throughout the course of these trips we located over twenty witnesses and these witnesses said that they had been in this prison camp in bosnia and part of the government's theory was that mr mitrovica had been a guard in that camp the camp and been open for a number of months about three months from may until roughly the end of september october and a number of these witnesses had been in the camp for the entire duration that the camp was open and this was significant because there was a large quantity of individuals that moved through the camp there was a transit nature to those individuals who passed through and there were roughly twenty five thousand who were there at any given or throughout the duration of the camps existence but maybe only a few thousand at one time sort of to find witnesses that were there for the entirety of the three months was very significant these witnesses confirmed with the defense team that they would  problem as witnesses who said i did see him there yes your honor because the witnesses that we were precluded from introducing statements of were those that were in the camp for the entire duration of the camp of those that we were able to depose they were there for i think at most eight days we were able to depose three the rest refused some on the day of depositions citing fear of retribution retaliation and they refused to go through with the process and so we were precluded from introducing the statements of the remaining ten witnesses four of whom were there for the entire three months so we did not have the evidence of these individuals the statements of these individuals who were there every day for three months that they did not see in the camp the government in fact in their closing said it's not the defendant's burden of proof but they did put on evidence they put on witnesses and of the three witnesses that were at the camp one was there for all of eight days but what we were precluded from introducing was the unique some stupid testimony of the witnesses who were there for three months who said that every single day that they were there they never saw him walk in mitrovica and that probative value is very significant and that testimony was very unique and although we were able to depose a few witnesses those witnesses were only there for a matter of days and therefore their testimony was not as compelling and it prevented us from putting forth a complete defense a complete defense so essentially we were in a position where the jury could have believed the government's witness that i see in the government's brief but the government indicated it also had witnesses who were unavailable to it and has that kind of thought so it wasn't that just the nature of gathering evidence and sometimes you're going to be able to gather evidence and sometimes you're not although it is absolutely true that in the course of gathering evidence and testimony and witnesses sometimes you're not able to put it all together but in this case the due process violation the fact that mr mitchell was denied his meaningful opportunity to present a complete defense due process the fifth amendment this applies to defendants so although it may be true that the government in the course of this international prosecution could not compel every single person to come to court here in the northern district of georgia and testify our claim is that it violated mr mitrovica his rights under the constitution because that applied to him in particular as the defendant the testimony would have  relayed through the testimony of your investigator who would then had to testify as to whether investigator found the particular witness credible or whether there were inconsistency there would be no videotape from which a jury could get the credibility of  witnesses that is correct your honor and then the government could have cross examined our investigator about his course of investigation did you ask this question did you ask if they saw every single person at the camp you didn't was it chaotic at the camp was a crowded it was they could have gone twenty years after the fact that they'd be one of the things they probably want to ask well yes it was twenty years after the fact in the entirety of the witness testimony for the most part with the exception of the agents and they the investigators came from memories and experiences from twenty years a course is a big difference in being beaten by someone and remembering it twenty years later versus being in a camp where there are thousands of  prisoners and not remembering seeing a guard absolutely your honor but the government's witnesses were also inconsistent there were issues with identification a number of them did not identify him lot and metra bitch one said he believed  percent a serb when in fact he was a catholic croat and married to a bosnian and so in light of these inconsistency is the fact that we were precluded from introducing this compelling crucial testimony denied us our right to a complete defense the government's witnesses were shaky on a number of facts and although some identified him some of the identifications were witness said that they only were sixty percent confident and some couldn't identify him at all and one witness in fact wrote not him above the photo lineup that they were presented with as it related to mr mitchell bitches pictures so the inconsistent witnesses from the government alone could not have been enough to meet their burden of proof had we were given the ability to introduce the statements of these other witnesses and so this combined with the fact that the court failed to take judicial notice of articles four and forty of the geneva convention precluded us from putting together that full picture for the jury s district judge very late in the game to take judicial notice it's true that we asked i believe on the fifth or sixth day of trial to take judicial notice but this was after being aware that the government's witness the expert was going to testify generally to the conflict in the nature of bosnia at that time and during voir dire we asked if in fact some of the forced labor practices of the country would have been in violation of humanitarian rights agreements she said yes and then we asked and in violation of the geneva convention and she said i'm not familiar and so we said judge at this juncture we would ask that you take judicial notice because that was the one missing piece that we would need to present the complete defense and argue the government's exhibit ten from the ministry of bosnia was a document that wasn't necessarily not what it purported to be but perhaps there was a motive on behalf of the bosnian government to not indicate on this document that this gentleman was in forced labor so all the action was quite it's quite confusing and it's not at all readily apparent that it would support the argument you make and it is abuse of discretion standard and what why do you think the judge abused her broad discretion in excluding this particular piece because your honor in order to find under four o three that it's too confusing that risk of confusion has to substantially outweigh the relevance and here the jury had been exposed to a number of witnesses who were testifying about the nature of the red cross coming in and what was going on in bosnia at the time and these two simple provisions of the convention articles for in forty days the sinked subsections of the convention should have come in to allow us to argue about the motive and essentially the reliability of government's exhibit ten we weren't asking for the entire ty of the convention to come in and we want to be more than reasonable dispute though about whether they had any application to what was going on in the sky and particularly with your client that is whether they would is up if i may briefly answer your question whether or not it specifically applied in this case should have gone to the weight and not the admissibility the government could have argued that but we believe that first of all it did apply and if they believed it didn't that's much more that goes much more to the weight of the evidence not whether or not it should have come in well if it would go would it not to relevance i mean if in fact it's what if the district court said i don't think it applies  circumstance then it would be irrelevant or she she did it your honor and although i agree with you she didn't and her ruling was too confusing and in light of the facts of this case the risk of confusion was not substantially outweighing its relevan good morning your honour's may have please the court so near austin for the united states i'd like to start by clearing up i think four matters about the record and then turn to the issues in the order presented by my colleague the first is about  the whether the depositions were sworn the foreign depositions that were actually taken on the first page of each of those depositions which were filed in the record you'll see that the court reporter swore the witness the second question is about how long the declarations who were not deposed were at the camp she says there were four people who were there the whole time by the proffer in their brief which is also in document one sixty four in the record it's at most three and i think more likely to of those witnesses and she said that one of the longest time one of the deposed witnesses was at the camp was eight days it was actually fifteen and the issue about the geneva convention comes up for the very first time a trial during the void of the expert witness and this is a transcript one thirteen to nine sixteen where you'll see a district court in fact asking the defense whether they're trying to convert the government's expert into their own expert to testify about this issue and the last point you'll find at the record at thirteen sixty three to thirteen sixty four which is the basis for the district court's ruling on the geneva convention issue which is that the court didn't think it could get it right it was too complicated there wasn't enough notice they could have brought an expert and it was too confusing so it's not just the confusion issue the court rested its ruling on several grounds that said turning back to the witnesses here if two points that i'd like to make the first is that she points out there was an inconsistency is in the identifications made by the government's witnesses and the reason we know that is because those witnesses were on the stand sworn under oath and subject to cross examination if the government had had even a chance to talk to these declarations we might be in a different position but they were never i mean the government never even had an opportunity to interview these people so all we have is the investigator say so and they say well you could cross the investigator but the quality of their investigation is not at issue right the reliability of the deck aren't statements is what's at issue and for all the reasons stated in our brief as your honour's pointed out before there's just no reason to find these statements in any way reliable which brings us to the second point which is that the evidence in chambers and crane in these other cases that they're relying on if fully exculpatory evidence that if you believe this piece of excluded evidence like bangs in the defendant is not guilty and that's just not what's going on here and finally about the geneva convention as your honor pointed out there was a lot of disagreement about whether it applied here whether it's a legislative or adjudicated fact this is a difficult case for everybody right it was a difficult case for the government to put together a difficult case for the defendant but together you're talking about things that happened twenty years ago in our own land far far away and does that bear on the assignment of error on the witnesses that is that everybody was doing the best they could to present as much evidence as they could in the most reliable way and that perhaps the district court could have given more leeway to the defendant in the circumstances presented that the district was operating under which is rule it was seven has one of its components as being in the interest of justice and i think that here that speaks to the interest of justice and the purposes of the rules which is ensuring that reliable trustworthy evidence comes before the jury and the district court i think the record bears out bend over backwards to give the defendant here every opportunity to make his case and did that in a way that you know the step addition issue went on for about three years about to arrange these depositions and you know get all the processes worked out and the district court was very adamant in helping to make that happen for the defense and they never asked for compulsory process in bosnia their letters regulatory multiple times  was going to be voluntary in the citations or in our brief so you know the judge here was doing everything she could i think to make this to give the defendant every opportunity to make his case but it still has to be reliable evidence you know we can't just be putting in whatever the investigator wants to say you know that's going to be the case then why bother having a trial you know what they call their investigator and we'll call our agent and you know call it a day but that's not what the rules of evidence envision for a good reason because it's not reliable we want juries to be fact finders which means they need facts in front of them that can't be just speculation so although i think there was some leeway given here the fact that it's a complicated case i mean there are lots of complicated cases your honor knows and the fact that a case is complicated doesn't mean the rules of evidence go out the window you know and argument here is that the skloot of this evidence was unconstitutional not not just some ordinary kind of trial and error but but the reliance on the hearsay rule here in this circumstance it would have been unconstitutional but it's a big deal that's a very high bar to meet your honor and brings us back to the test under chambers and crane in these other cases especially if you look at south carolina versus holmes with the supreme court in a unanimous opinion essentially blesses the federal rules in their flexibility as complying with the constitution in that we're talking specifically about four o three but the way that justice alito it for the unanimous court is talking about the federal rules with all of the discretion that they give to district court judges is that it is so facto in the words could you never have if somebody the district judge complies with the federal rules of evidence is it so facto constitutional so we make that argument in our brief and i think if you're talking about the rules where there's zero seven where there's this catch all rule that gives the discretion in the interest of justice then yes and if we're talking just about the chambers crain holmes line of right to present a defense and not some other specifically enumerated right but the court doesn't have to reach that argument to resolve this case there are many more narrow grounds on which the court can go here and just to sum up on the geneva convention issue i want to reiterate that the district court  you know the government presented its request for judicial notice of bosnian law more than several months before a trial like two or three months before the trial and it started that process of contacting expert who was going to translate and explain the bosnian law more than eighteen months before trial it's just can you help me i'm having some difficulty trying to figure out what it means for the right nor what they say that's correct is that it or does it have to be something more than it has to be something more your honor in the rivera torres case from the first circuit is the best example that we've got on that and that's a case where there was this puerto rico law there was no dispute about what the text of the law said but the wa if followed would have changed the plaintiff's case essentially would have been directing a verdict for the defendant and the first circuit says that to read judicial notice of the law would imply that the law was followed in the just reports that in my experience this law is often not followed and so the district declined to take judicial notice the first circuit upheld that because it's not just the text of the law that matters it's the use that you want to put to it and here they didn't just want the abstract at the convention they wanted to use it to say that it applied to him and it applied to this conflict it covered him it covered his labor and there are several reasons that we lay out in our group why that's not true or might not be true that it's a highly disputed and that's why an expert witness would have been ok so long as those matters are or are in undisputed to be a subject of judicial notice and here the fact of whether this applied to him whether it applied to this conflict and whether it had any usefulness to the jury was in a great deal of dispute the i don't think there's any doubt that the facts that we're talking about whether it applied to this conflict whether deployed is labor all of that would have to be due to a fact yes i think so and moreover the purpose that they want to use this for was to undermine to impeach the credibility of government exhibit ten but they nor the fact that exhibits nine and eleven were even stronger evidence of the point that exhibit ten was presented to prove which is that he was a member of the  s you know exhibit nine is his own record request for better and spent it fits you know that's his own words saying i was a veteran give me this money and then exhibit eleven is the government document giving him those benefits so when those are in evidence and undisputed it doesn't really make sense that any additional impeachment exhibit ten would have changed the outcome and more here in maybe a fine point but following up on judge ours question is the issue of whether you take judicial notice also in a in effect a decision as to whether the evidence is probative or the used to which is going to be put or do you take judicial notice and then decide whether it's going to be relevant or it has to be at least somewhat relevant or program to be a subject for judicial notice i mean otherwise there's no point right in taking judicial notice of something that's irrelevant to the case and that's what the first circuit is talking about in rivera torres is to take judicial that he still made this argument right and this actually his argument is that slavery is bad and so the bosnian government wouldn't have owned up to slavery well that's not really an argument that needs a whole lot of bolstering to make  obviously bad and he made this argument in closing so if the elimination of judicial notice didn't even hamper the defense that was presented at trial unless there are further questions thank you  honor under the due process clause criminal prosecutions as we know must comport with these ideas of fundamental fairness and here the proceedings simply were not fair in light of the evidence and testimony that we should have been able to put on  first as to what about your adversaries argument that chambers a line of cases really deal with wholly different from the kind of evidence we're talking about here well chambers and those line of cases your honor stand for the proposition that you put forth that regardless of the rules of procedure and rules of evidence we have these constitutional considerations that emanate beneath all of it and i think chambers in particular is interesting because it's not that this one rule of evidence was unconstitutional it was the interplay of these two rules and so therefore it's not just that this rule  zero seven was was wrong and the judge didn't get it right which first of all in her ruling she doesn't even say eight o seven she doesn't necessarily couch it as an evidentiary ruling but it's not so much that the rule itself is problematic and i know the government spends so much time in their briefs saying that the rules are constitutional that's not what we're arguing what we're saying is that in light of the rules and of procedure and evidence we still have to consider these constitutional underpinnings and that was our argument in our motion that's why we said first of all it should but second of all it should be allowed under the constitution i'm not sure i got an answer to my question which was it seemed to me that your opponent's argument was that chambers and that line of cases deals with discusses is that these statements have in disha of reliability and here we also had the addition of reliability and the exculpatory nature of the statements was similar for us because we were precluded from introducing testimony from ten witnesses statements from ten witnesses who were at the camp the entire time well let's say that we were to believe every one of those witnesses that they did not see your client and the entire time they were  there does not mean that he's not guilty well your honor we don't know because that though those statements didn't come in and what i would like to know you understand the evidence we're talking about in chambers where the diff where someone mid to a murder right if believed meant the defendant was not guilty right that's not what we're talking about  here but what we are talking about here are a number of witnesses who were there the entire time we had no other way to get into that with the amount of people that passed to the camp it was a miracle we could even find these people to find somebody who was there for the entire duration of three months was compelling and we believe exculpatory evidence when all we were able to put on were three witnesses three we were able to depose three witnesses or perhaps four one was actually a wife of somebody in the camp who said that she visited the camp that's where we got the number four from but these individuals were there for only a matter of days and the government made much of that in their closing argument and i would also like to emphasize that it's the government's burden beyond a reasonable doubt to prove that this is not a harmless error and they proceeded on four different theories one with kind of a subpart that only if it isn't there that is correct yes but if your honour's do find that it's an error because of how they proceed in this case with four different theories about how mr lied on his farm there's no way for us to look at this verdict form that just had one unifying whether he lied or did not lie on the m four hundred form and say oh it wasn't this error by the court that contributed to the verdict obtained and so because we believe that this exculpatory critical crucial evidence was erroneous lee precluded at trial we believe mr mitrovica was denied his opportunity to present a complete