good morning and made it please the court my name is jeremy orton and i represent defendant appellant is sending a new yes tapia this morning i will address point one from my brief that the court improperly precluded testimony of her brother julian the government in its case in chief introduced an exhibit government exhibit fifteen that exhibit contained several texts between ms tapia and someone referred to as arrested on december th at j f k with a bottle of mama wanna which contain drugs government exhibit fifteen was a powerful piece of evidence for the government benito drove a very long distance from queens to miss tapia home again late at night arriving at her home well past midnight and they established that  k it was imperative for the defense to destroy that inference and also simultaneously using exhibit fifteen to demonstrate that maqui bay who was the person her boyfriend in the dominican republic who had center the gifts for his friend the quib a amigo to deliver to her was grooming her to bring a bottle of mama wanna to the united states in the near future this healthy a the idea that she was being groomed by being given an empty bottle of this product that's exactly correct w why why would anybody dream what possibility can there be that somebody give somebody a gift an empty bottle something thank you well there was testimony in the record indicating that the bottle of mama want to st of all as especially as a special bottle in the dominican republic or a regard or treats for dish qualities and frequently given under circumstances where you would want that effect to take place my client  problem is not going to have any effect at all no no no no your honor there's testimony in the record in fact i put this out through the government's with his head who testified from the customs and border patrol who was familiar with  that the sticks and the bark in the bottle are used the person with the bottle in the sticks in the bar sticks in the bark excuse me refills the bottle with with alcohol and those sticks and bark can be re used multiple times so with or without the liquid it is still a gift but regard regardless of whether or not it's a useful item or not a useful item by having her brother testify it would have would have negated the inference that the jury would otherwise have been able to draw that the gifts that testified that he was on vacation in the dominican republic when he received texts from his sister asking him to pick up gifts from a and bring them back to the united states on his return trip so that they could be given to her and he would have testified that when he entered the room at the airport at the dominican republic he didn't want the liquid to be in the bottle for traveling purposes on the flight so he emptied the bottle of the liquid contents and he could tell at that point that it did not contain any drugs and this was really of crucial importance because without that testimony the only indication that the gift items including the bottle of mom wanted didn't have drugs came from my client and while that is evidence and it comes from her you know she is a marginalized witness she is a very weak witness and she's a weak witness number one because she's the defendant but more importantly because on direct examination and again on cross examination she had admitted to lying to the federal fishbowls at j f k airport and then she admitted to lying at two subsequent proffer sessions which occurred months later and i don't think this is noted in the brief or not but just for clarification i was not her attorney at the time that the proffer sessions took place so because she was a severely damaged witness and the only one who could refute this inference that the bottle contained dr it which obviously would have been a very very potent piece of information when the defense is claiming she didn't know there were drugs in the bottle on december th if the government could create that inference to the jury that she had received a gift with a in a bottle of momma wanna that contained drugs six dollars to seven dollars weeks before she arrived the chain of can airport that would make her claim and our defense that she lacked knowledge of the contents of the bottle incredibly weak so to corroborate her testimony we needed her brother to be able to testify to these facts that the gift items that he brought from  to his home in queens which were then later that day picked up by maguey been ego and taken to my client in pennsylvania didn't have drugs was just was just crucial because without it the inference that she had drug seven weeks earlier would destroy her claim that she lacked knowledge of drugs being in a bottle when she arrived  as i said this this testimony was of great importance to the defense the the court asked for a proffer late on thursday afternoon after my client had testified about what this what julie and her brother would testify about and i made the proffer and the judge's original ruling was a request based on bolstering now we can argue about whether that was a legal term or a non legal term but yes he was going to corroborate what she said and it was crucial for him to be able to corroborate what she said as i've already indicated the following morning friday morning  proceedings began with the government expressing concern some concern about the court's ruling so there was more discussion additional information was provided by both sides including me  explaining the importance of his testimony not only to establish that there were no drugs in the bottle and therefore to need kate the inference that there were and therefore that she had knowledge on december th but also at the same time to establish that her boyfriend who had been texting and wooing her for months and almost insisting that she come visit him in the d r which she obviously subsequently did and paid for everything by herself and there's also evidence in the record of my proffer wasn't allowed to introduce the evidence but the proffer was there that she had sent to me nude photographs of a self they were sexting they were using romantic language i mean this man was seducing her and playing her and setting her up and part of that set up was sending her this bottle a bottle frequently sent by lovers or given by lovers in the dominican republic has as a gift and if you receive one gift item and it doesn't have any drugs in it and then six to seven weeks later you're visiting this person who you are totally completely in thrall to with and they ask you to bring a bottle the same type a bottle back to the united states as a gift for somebody else it's completely reasonable to do that without knowing what the contents of the without knowing that the contents of the bottle contained drugs and so this was you know a very important point for the defense it was denied alicia and nationally on bolstering grounds which i submit was completely all improper and the following morning friday morning after discussion the court changed its reasoning to relevance i submit that that was incorrect that this information was highly relevant as a rule for one state relevant evidence is evidence having any tendency to make the existence of a fact more probable or less probable than it would be without the having now as defense the two trips that are in question here were distinct in every material way of turbo two thousand and fifteen trip to concerns the proper testimony of the defendants brother regard was what the proper  bottle and furthermore that bottle was intended for the pollen and for no one else the appellant had no specific knowledge about the weight or any other characteristics of the bottle and that's so that had a different be consumed by her the destination of the bottle was not to her and which are known at the time and she was also at that time she specifically stated under oath to be a trial that she was aware that people in the dominican republic often get drugs  completely different the bottle that was in question then contained cocaine was a bottle that was unusually heavy the defendant testified there was a newsweek heavy she left her own possessions and in the dominican republic to make space for it the bottle was not intended for her it was intended for someone else she also stated she had knowledge that people provide drugs to give to other people she did not have the name of the individual who received the bottle in the us she at that time stated all she had was a phone number and so i think the surrounding circumstances of a bottle that was intended for her as a gift that came seven weeks before both of the bottle that she was carrying distribute to someone else that was all the clothes that are mature adult material facts that make the bottle the seven week incident relevant i think also important to honor the question with techs that are in evidence that he brought items from a great day in the dominican republic to the house in queens and that's what those texts it's to explain that exhibit how did how did defense counsel not preserve messages the existence of those messages established a critical lie that the defendant told agents at the time of arrest and told the government improper us after her arrest the government did not submit that did not admit that exhibit with regard to the substance of the sex which is it was during it was their deletion that was relevant the defendant's initial story to the government was that she did not know the individual who had received a bottle filled with cocaine after the government accessed her phone and she pointed out the number of the name of the number to the name and number of individuals received the cocaine the governor was able to analyze the phone and see that she had been in contact that individual in october of two thousand and fifteen which undercuts her story that she was going to talk that person for the st time when she arrived in december so the defense counsel was wrong that the government the government never characterized the content of the instead the mere existence of those deleted messages and her decision to intentionally delete them was procured of a person knowledge about the contents of the cocaine in the memo want to bottle because she obviously would have to delete those messages before she took a submitting the proper testimony that he would speak about the substance of the message is one that was not brought up before the trial court and secondly he would not have he would have had firsthand knowledge of the substance of his messages the messages are the objection that the proper testimony was relevant for the substance the substance of that of those messages really became all right when defense counsel raised the argument and his closing and the government bottle thank you government exhibit fifteen was admitted for all purposes without any limitation or any instructions from the court that it be used for a limited purpose having said that no matter what the government's intent was in introducing that exhibit it was completely reasonable from the exhibit and from the questions asked with its introduction about the lateness of time the length of travel the fact that she deleted texts one by one from her cell phone totally led the jury to reasonably conclude that there was something the ferias going on with those gifts that were being brought to her well past midnight if so facto that they contained drugs especially a bottle of mama wanda and the defense had a right to refute that regardless of what the government's intent was and that's what we attempted to do now as is as everyone knows the government gets a rebuttal summation and time and time again defendants make their arguments and then the government introduces new information in its rebuttal summation and slams the diff so the defense has to be prepared for that and deal with that so in this case yes in my summation i indicated this this exhibit government exhibit fifteen had nothing nefarious about it no drugs it's cetera and then if you look what the government did in their rebuttal summation they totally slammed me with this indicating that the jury should consider the time of the meshes the messages that they ended at one fifty one in the morning this is the middle of the night what was this just for delivery of chips would anyone drive in the middle of the night to deliver these chips as you can see one thousand five hundred and fourteen in the morning clearly the government was suggesting that there were drugs in that bottle and this was a crucial crucial piece of evidence in this case and i was denied the ability to refute that with a strong objective decent witness who didn't have his credibility destroyed by the fact that number one they were defended but more importantly that that witness ms tapia had testified that she lied to the agents at the j f k and then she lied again agents and to two subsequent proffers and the government made hay of this on cross examination too so in the end she was an extremely weak witness we needed a witness to confront this evidence to explain this evidence and that person was her brother julian knew and you know as we would deny did initially on bolstering grounds later on relevance grounds i read for a rule for one in my opening statement you clearly clearly this was relevant evidence to prove number one she was groomed and more importantly that that bottle and none of those gifts had any drugs and she had no reason to suspect whatsoever that the bottle that she was bringing into the united states to j f k airport on december the six had drugs in it thank you i think my time is expired but i'm happy to answer any questions thank you before i let you go that is