morning may it please the court robert culp assigned counsel for hector rivera who is serving a life sentence for three counts in a murder for hire scheme the murder took place in two thousand and four in response to a beating that took place in two thousand and one yet this case was not brought until two thousand and fifteen and a late two thousand and seventeen any examination of this case must take into account both the passage of time and the serious credibility baggage brought to the case by the government's witnesses who are all seeking major time off enormous potential sentences that included ronnie m russi it was the man who was severely beaten by the victim yet claimed he knew nothing about the murder even though he paid he said he paid money off of it out they are at least at the time of the trip to puerto rico and intend to commit the murder for hire that's why the that was the purpose of the trip tomorrow argument is that there's got to be more than ten under the statute that there's got to be a qui earlier it was important in a case like this with the credibility issues that the defendant be given a chance to defend defend on the case and he was not permitted to cross examine the state  detective on the threats that were in the police records that have been directed towards the victim now it's understood that that this cannot be offered this kind of line of examination examination with respect to the fact that someone else was being prosecuted from that the only thing he didn't allow was the plain hearsay threat which was at least double hearsay that's a big point of view is is the thing that they have to investigate out a possible threat to the victim depending on that your reading of the documents either hours or a day before the murder if this is something that he was entitled to ask this detective s the source wasn't clear either was it there were there was some confusion on that your honor absolutely and weren't there wasn't there at least one witness available up to testify as to the threat directly not a witness that was reasonably available to the defendant i mean i mean i thought the brother i thought that's rather saw here was that the defendant was supposed to call the victim's brother to the stand on this to me that's crazy that's that's not a that's not our serious option to call the victim's brother no exception for the on availab the judge went to great pains to say here all the other things you can do come back to me maybe i will need and you know press hearsay issue but you've got to do more and then and the attorney said we've thought about witness on this absolutely not but you can put on an affirmative case if you want that's what he didn't want to do we didn't want to have to call the victim's brother but he said he decided to forego that portion of the defense case for strategic reasons when the district  wasn't pursuing this line of defense if you took reasons right because his troy he didn't he wasn't given a fair choice he was he was he was given that the option of putting on an affirmative case which any defect defense lawyer will tell us and he did in this here in that it appears that the government it the prosecution did pursue well the law enforcement did pursue other avenues of following up on these threats and that was not the case in alfredsson interpretation of some of the documents that the government made at the time and i'm sure will make in a moment but but it's the defense is parag you have to to ask those questions to the witness in the chair not to make these judgments sort of  sidebar if you will so that our point is that that he had the right then to confront that witness against him not put on an affirmative case later on but to confront this witness who the government put on the testified about the scope of the investigation so why can't the defendant confront him on this i'd like to point out that there's a lengthy record here and i would i would guess you find a good record in the judge and the liar asked the lawyers questions at length and read from the documents and so forth but he did change his mind if you know to page one hundred and fifty four to fifty five of the appendix i'm going to permit this in the interest of bending over backwards and making sure that there is a full opportunity for the defense to explore this avenue but i want to make clear the threats are coming in are not coming in as a matter of the truth the sort of well they were never offered for the truth of matter should i realize that is that is singular here but then twenty pages consideration exactly but i'd like to suggest he was right the st time all right thank you very much i think we have the argument and you have two minutes of rebuttal mr cupp and you will hear from the government i'm scott hartman i represent the government in this appeal and i also recommend represent the government in the district court below with the court for mission i'd like to start where you left off with mr called talking about the pollution of cross examination on this point and there's a couple of points that i'd like to make about that the st is that with respect to the proffered reason for this cross examination which was to impeach the government's case one of the points that judge and them are made is that the program the value of this cross examination was very low and that's for several reasons the  st is that the actual lead that was being identified as part of the the defense counsel's review of these police reports was very thinly sourced that wasn't at all clear what the source of the lead was and as a result it wasn't at all clear how the police learned this information or whether it was the result of some sort of misunderstanding that although there were a couple of reports of threats being made that suggested that maybe someone else had a motive and maybe an opportunity even to commit the murder that mr culp's client was eventually convicted of and i mean clearly the district court was troubled by it i mean what was in it to air or to be a little more expansive in allowing the defense to pursue whatever he wanted to do with that report said is that he encouraged defense counsel and he said this repeatedly to develop this evidence either as an effort to impeach the government's case or to impeach the police investigation or is affirmative evidence substantive evidence of an alternative perpetrator or an alternative motive and he in fact directed the government to make available the person who it appeared authored this memo a police lieutenant he directed the government to make available these witnesses based on our review of the police reports we identify the person who we believe made the phone call to mr neck to law and there's some discussion that's in the transcript there's also some of reporting that was provided by the victim's brother and judging them are directed us to make that the victim's brother available as a potential witness and we did that and it's reflected in i  page ninety of the transcript that we offered to do that and ultimately defense counsel for strategic reasons made a decision not to pursue this mr culp's point that it wasn't incumbent on defense counsel to present an affirmative case but if what defense counsel wanted to do was impeach the investigation it was incumbent on defense counsel to impeach the investigation through competent evidence and the issue here really was that detective as i think judging our said was an incredibly flawed vehicle for doing that and the reason for that was because detective i think it was undisputed had no personal knowledge of any of these issues he had no personal knowledge of the fact of the threat he had no personal knowledge of what follow up occurred all this happened a year before detectives became involved and so just so the court's clear the history of this is that the murder happened in two thousand and four there was an extensive investigation in two thousand  including an effort to look at this threat and as i was saying earlier part of what i think factored into judging omar's analysis was that this evidence wasn't particularly probative of weaknesses in the police investigation because the police did in fact do a fair perpetrator the murderer running from the scene those were offered pursuant to a stipulation and so detective dollar rocha wasn't testifying as a percent being a witness or respect to those clips he was really testifying as a summary witness or a narrative witness that was describing what what you see  orienting the jury to where they were facing and what not he did put in a couple of facts that he knew through hearsay and they were without objection he put in the date of the murder the location of the murder and the name of the victim in the location where the victim were but other than that the evidence that you put in was all percipient information that he had based on his review of the video clips which were offered without objection pursuant to a stipulation and then his own work a year later in two thousand and five once the shooter was identified and so detective bil rocha did talk about his investigative steps in two thousand and five well after the efforts to develop evidence with respect to this alternative perpetrator had concluded and his efforts with respect to photo raising photo identification procedures once the actual shooter had been identified and i think this is clear from the bruce but the way the shooter was identified is that he used the same gun that was used in the murder in a separate shooting he was arrested in connection with that shooting and then i would assist in the murder identified the shooter and that was really where detective was involved and so it's not the kiddies one point says what defense counsel is trying to do here is used as a sort of thirty six witness to talk about the investigation and it's not the case that that's what the what the government did on the direct and so i think it's a little bit unfair to say that the government did do that and so therefore cross examination should've been allowed on this point judging them are was concerned that any information that detects or would have about investigative steps that were taken with respect to these leads would be the result of hearsay purely by reading the reports that were available i think undisputedly to everyone in the court room and so what he was really asking defense counsel to do is find a witness who is competent to speak to the police investigation on this point and the government offered to make that witness available and defense counsel declined so if the scope of the investigation was defense is the defense's actual focus what options were available to it to criticize the scope of the investigation will certainly defense counsel could have called another police officer and as i said the government made officers available who could speak to that issue who could speak to the nature of the threat and the basis for the threat again there's a report that's a police report but there is and we were never able to identify a defense counsel wasn't able to identify a witness statement that supported that threat there were witness statements about th us off shooting and even clear which officer prepared the report it wasn't clear judge carney judging mark one point says the report appeared to be authored by this police lieutenant but if you look at the document and we're happy to provide it to the court if you like the document itself is very unclear about its information its source thing is judging them or says at one point this is sort of an omniscient document this is written as a report a description of the nature of the leads that the police are pursuing to someone higher up in the police administration it's really a bureaucratic document and so what we were looking for and i think what omar was looking for was a witness who was competent to talk about the bases for what was in the report and the best we could do is this lieutenant who appeared to have his name on the reporter signed off on the report and defense counsel chose not to pursue that and and in our view and i think in judging him or his view that was the appropriate vehicle was to find a witness who actually knew about these and could speak three i think one of the factors that he really emphasized is that there really was a lot of meaningful follow up with respect to the pen shooting the victim's brother was interviewed mr pena software's interviewing this is in the record or this was it diff absolutely and we and again we agreed to make these witnesses available one of whom was the victim's brother and was in the courtroom there's a whole colloquy about the fact that he's in the courtroom judging them are asked that he be excluded so that he wouldn't be tainted with as a potential defense witness ask you a question on another issue in the case of course as it is you rely on the travel to puerto rico and you rely on telephone calls the telephone calls go from the rivera cell phone to the shelter where forty staying there's no testimony about the substance of those calls are there any sort of comparable cases where the conclusion that those calls were part of the murder for hire that that is circumstantial evidence rather than simply speculation for the jury the judge called it was especially a question about comparable cases i have to look at that and we can look at that  if that's something you're interested in and i can tell you with respect to this evidence our view is not purely speculative the relationship between mr rivera and mr forty eight dollars was purely in the context of this murder for hire plot they didn't have a prior relationship they didn't know each other mr morality introduced mr forty and mr rivera for the purpose of carrying out this murder for hire plot and there was testimony from mr morale is that at that st meeting where they were introduced mr rivera and mr forty a exchanged phone numbers and so there was a basis in the record for the jury to conclude that mr forty had mr rivera's phone number and that mr rivera had mr forty is phone number and what we see in terms of the pattern of the calls is there's a number of calls and this is the government's appendix has the chart that was presented to the jury i think it's the st item in the government's special and extradition at and i'm but what you see is there are a number of calls between the introduction and the murder including on the day of the murder and then there are very few calls if any after the murder takes place and so our view is the fact of the numbers being exchanged the fact of the relationship and the relationship was circumscribed by the murder for hire plot and the fact the pattern of the calls the fact that they they occur and then the last one occurs on the day of the murder just before the murder takes place that is powerful circumstantial evidence of these calls being for the purpose of accomplishing the murder for hi plot on the other point the travel point i do think it's sort of unassailable that the travel was for the purpose of carrying out the murder for hire plot i understand defense counsel to be argument with respect to the trouble to be that there was no forty the shooter at the time of the travel and that's absolutely true but what there is in evidence is there's an agreement between mr morale us and mr rivera at the time of the travel and what mr morale is testified is that at that very st conversation where mr rivera discussed with mr morality the plot they discussed the fact that the murder would be carried out for compensation or for consideration both for mr morales and for the individual who he alternately recruited to carry out the murder n essential person to all this and that there is no reason no agreement to hire him to commit a murder unless he's in on understand the government disagrees on the phone judge i did cite a case in my brief it's a district northern district of georgia case u s v sullivan just one of the calling to attention it's a case where there were phone calls and the court held on a on a motion that that there was no connection to the murder i arguing the facts here that that it speculative for the reason stated in my brief but i did want to call that to your attention and although i think i responded to this earlier i'm just going back to the issue three that i chose to emphasize this the government keeps calling him a percipient witness to certain things but he did testify whether he was helping them go through stipulations or not he did testify about the scope of the investigation that was before he started working this is done the rocha i'm talking about and i also he's an investigator this is an investigation that store did in two thousand and four and for mike from my client's perspective continued into two thousand and why didn't you look into these these statements about threats made to the victim just because he came in to your leaders that mean that you can't look into them and if he has an answer let him give the answer but my understanding was also that there's it wouldn't have been a good basis for that question since materials a deuced are produced to you and three thousand five hundred context and statements sidebar and so on suggested that they had looked into some of these things they have looked into it but he's the investigator why can't the defendant ask him why didn't you look into this further or what did you do what is your when is he inherited the investigation it's not something that that you can say oh he had nothing to do with because he was on the job for the st year that connection was made with  and was arrested and i think that connected up the list that we know the date of that you know to the government if you want the specific date i don't have that on your vision of i believe it was within a year or so it's about a