i'm going to weave each agree to take roughly six minutes and forty seconds that we have amongst us i'm going to try to reserve some of that for a bottle i forget which one mr maynard is going to go second and then mr fisher is going to go third ok thank you  i'm going to turn first to the issue of my client's incompetent to stand trial the judgment of the district court should be reversed in part because mr moore was incompetent to stand trial and the district court should have so held any rony asli found incompetent in part because it did not give due weight to the testimony of the defense attorneys at the that was presented at the competency hearing this is uncontroverted testimony show that he did have excuse me did not have the present ability to have a rational ability to understand or excuse me to consult his defense counsel and thighs that lead to an unreliable determination of guilt the judge seemed to just zap the attorney's evidence entirely in making that ultimate decision and sort of looks that way assuming that that's wrong i take it what we do is send it back to the court and say do it right and then tell us if he was incompetent or not i think on this particular issue i think what would happen your honor is that the judgment does get vacated the sentence would be vacated and he would have to go back i'm not familiar with being able to do a retrospective determination of competency for a trial that one is already had it's a right not to be tried if you're incompetent and so i think he would be entitled to a new trial oh sure it would if you were confident at that time  he was a victim of fetal alcohol syndrome he used substance abuse is he had psychosis he was probably paranoid schizophrenic he was on anti psychotic medication at the time that yale had put him on that he tested  reasoning ability in the lowest two percent tile and he had a working memory and the lowest one percentile which dr connors suggested was basically a working memory of twenty of the sixty seconds all the experts agreed that he had a problem with reasoning with higher level hypotheses and abstract thought and this prevented mr moore from having a rational belief to consult with his defense counsel which is what dusky requires us he requires a rational ability to understand the proceedings he was unable to presently assist with his defense counsel correct and the court found otherwise based on the testimony of the other court found otherwise by ignoring the testimony of the defense counsel and focusing on the conclusion of  client's rejection of a plea offer against legal advice that doesn't talk about any of the other materials that the defense counsel brought for the district court to consider for example mr moore did not testify because he did not rationally understand that he could testify in support of his own defense of alibi without being labeled a snitch i was going to argue and i don't think it's fair to characterize the district court as having ignored the testimony of the attorneys when the court explicitly addressed that testimony it did address the judge in that very narrow manner but i still believe that it was not given the do weight that i thought that argument in the short time much available to you could you please address the exclusion of the mental health expert testimony yes your honor the national health experts were doctors from rand and dr conner dr conner was previously disclosed to the government she was involved in the case from nearly the very beginning when this was a time that the court extended and the court had put with the exception of dr conner and less previously disclosed well she was previously disclosed and it is was clear error for the court to exclude her suit was fine the government did reconsideration dr conner their main complaint was about dr moran's and the problem there was dr moran is was appointed late in the trial excuse me close to trial before the trial began and he was unable to produce a report by the time of the of the disclosure deadlines you know but it's strikes me that that your problem is that sure dr conner would disclose she would disclose for another purpose that another time he she was on the witness list no question about that she was not disclosed for this particular purpose this particular time so maybe the consul trip the question is whether the penalty was too harsh for the trip and she was not closed the evidence was the same the evidence for the men rea is the same and there was a failure to disclose there was no prejudice to the government cause it's not new evidence it's the same type of evidence right thank you you took you took seven minutes but we'll make sure to give you a little time the investigation of the government and the theories of the government in this particular case we attempted to put on evidence the government's theory was that mr fuentes had paid for or h wanted an individual killed because he had testified against members of one to assist family there was the only individual who had actually testified against members of flint as this family or anyone in the underlying case had been brought into the prison in november approximately five months earlier the the evidence showed or would have shown had the jury been able to hear the evidence that once m this individual in the in the prison he had approached a prison official who has been with the prison for seventeen years it vised him in secret that this individual's life would be threatened or he would be harmed and that he as this individual be removed from that from the prison yard the prison official did that the individual was removed and when we tried to put that evidence in front of the jury the court  did denied it first on the grounds of relevance a and then second as contending that we were bringing it in for character evidence your honor the evidence was admissible for a number of reasons first off it didn't have to go to character it had to go to the investigation of this particular case the chief investigator had asked any of the prison individuals to let them know if they had any information that would bear upon killing that occurred the mr dylan ger sent an e mail which is exhibit two o three which was never admitted into evidence which is part of the investigation it went to an investigator barton and jet investigator barton was not able to testify about that e mail which was evidence that he had collected as part of this investigation additionally we've brought in  standard i don't evidence very ruling you look at it in abuse of discretion standard and then you look to determine whether or not it's harmless error and we contend that it would have been it cannot be harmless error to exclude this type of of evidence also under the fifth amendment we believe that you would look at it as a no vote because it's a night him due process he was not able to put on a complete defense he could not contest exactly what the government's theory of this case was and how long would it have taken to put in that respond is going to take a while and in a five week trial it just would not have taken more than a half an hour an hour to flesh this out ok this is not going to be much ok but we've got villager who is working for the bureau of prisons on the stand who's going to testify about how he made the document why he made it the conversations that he's had for when to us and why he felt compelled to do what he did you could have went to susan testifies about why he went up there it goes to whether or not he has motive ok so for the moment that against mr points has there only evidence was from that the three prisoners who came in to testify and i hope that pointed out in the brief i proceed a little differently than general but their testimony was inconsistent was contradictory every piece of evidence in this case was important and the evidence concerning how mr fuentes treated mr ramos not only went to the investigation of this case in the government's i'm talking about in the court i don't believe i said i don't believe i saw the argument that now that might have been more interesting if if as well he asked me to hit him and he wants to bring in infer he didn't go after the other snitch either and that's that's a little more icky but the other is kind of direct i don't think i saw that argument being made in the court was being admitted to impeach that particular on your my new issue if you tell me i want to bring it in because it's a blue sky outside it's a little more if they know i would agree with that  i think i have to turn over my time right thank you good morning i'm carmen fischer i represent mr pablo and i represented him at the trial the reason this conviction and sentence should be reverse a new trial order just because mr pablo did not get a fair trial if he had gotten a fair trial he would have been acquitted not just of murder aiding and abetting murders it was charged the jury but with the conspiracy  the problem was that he was tried with the co defendants in every issue before you really stamps from him being tried with his co defendants the evidence against mr pablo in the sixteen day trial cruz's testimony about overhearing mr flying to as and mr markoff talking about needing to talk to mr pablo about this and of course the keith thomas testimony none of this testimony showed he was a participant in this murder and that is why the jury acquitted him of aiding and abetting in the murder they convicted him of conspiring in the murder i believe because of all the every other evidence that came in from the co defendants the evidence that he was a cripple they came in and which i do not believe was wait if you look at the excerpts of record starting on page eighty two you'll see my objection and my constant continuing to object with against this evidence coming in from the inmate profile and the case all indicates a judge needs to be given an opportunity to know the nature of the error and when you read that you'll see he had the opportunity the the some of the argument was it's not fair judge to let the young bring in what's on an inmate profile form he doesn't know where the information came from he doesn't allow all the information concerned about him there was plenty of evidence that he was involved in the particular racial group and and was making crew there and you've got a confession which the jury didn't accept you got that from the element i agree that it looked to me like the crypt was pretty marginal compared to what else is going on in this trial if he hadn't been perhaps the gang the crips i might agree with you if it hadn't been a gang is notorious was the crips i might agree with you and as far as him being a suspect my recollection of the testimony is detective said that the computer was set up in such a way unless it's a security threat group then it would only enter as a suspect not a member but i agree he was associated with the native americans but he was he is a native american  excuse me the another argument you haven't seen your brief although you don't emphasize it much in favor of severance was because mystery element was tried along with everybody else mystery elements clear statement at the beginning as part of his confession that mr palmer was not involved is never for the jury right and that was obviously prejudicial to mr problem that he would not that was taken out in the pronoun put in and we where he says it wasn't pablo wasn't involved right i don't have a good part for you look about the bad part for the others just put in sort of generic pronouns all bunch others yeah i think i'm over my time but why don't we hear from the government and we make sure that each one of you has some time for a bottle thank you very much in a situation which could have been straight out of an h b o episode of oz the prison drama this district court used common sense application of the facts to the law to determine whether or not reasoning that is what the court focused on and the government witnesses opinion was not supported by the record the reasons that the different the government witness used were retain even a rudimentary understanding beyond a few minutes and the government evidence did not refute that and further the government expert had relied on the defendant's ability to perform mechanical functions as evidence of his competency and the court found that those reasons were not supported by the record and not appropriate for the determination and there for it was error for the district court greater weight to the government's expert then to the defendant that's not the case here what dr potts the government expert did was he pointed out to the district court that the people who knew the defendant most who had spent the most time working with him were not aware that he had some voices speaking to him were not aware that he had asked for medication to help him to lea noticed that he was bothered by any voices but the defense kept seeking authorization for additional expert assistance and it was only when they got dr moran that the different didn't ever mention hearing the defendant himself reported that he could suppress those voices by concentrating on something else such as reading or exercising so the defendant  of the exclusion of the testimony from dr conner dr morons i see that the deadlines weren't satisfied what's the standard that would allow the district judge to exclude that i think is a higher standard than merely that they m absolutely agree and say no there was no will formulate an attempt to gain tactical advantage but as i pointed out in my brief the defense did it over and over and over again for moran he had never given a report for dr goldstein they had never given the opinion for a fight the what we're not we're not talking about that testimony you know you are wrong saying that an example of what the district court was looking at when it was making these decisions it wasn't the one time it was over and over again court had shot twice the defense counsel for failure several times and even when they found out it was definitely prejudicial to the government if the government hadn't had no then they finally asked to appoint him again for this purpose the time the district court appointed him and said you have a report here and what amounted to six days when they were unable they didn't couldn't get d here too i don't i can understand that maybe they were doing some let's just say they were doing stuff that wasn't entirely appropriate at other times but those two doctors are the core  defense of that part of his defense there's that other doctor but she's sort of an alcohol person and she's limited and they're both just shut out you know where do we and the court had pointed that out to the just granted yes you're asking first what you had after conner and that was the reason for the first denial because the district court said you already have a psychiatry you don't need another one at this point and then when they continue to ask for dr morente and it wasn't until august that they asked to have the experts appointed for that purpose th changed mr fuentes was the instigator mr pablo was the facilitator and mr moore was the actor the defendants all presented similar defenses they argued that the government didn't prove its case because all of its witnesses were liars and its investigators were incompetent so the government submit that there were no grounds for severance in this case they were properly tried together and that there were no errors by the district court with regard to the four or four b evidence that was argued now was offered for state of mind of mr talent or the district court found that mr belin just state of mind was not relevant and therefore the court excluded that document and although the court excluded itself mr pointis was permitted to get in significant testimony in support of his theory that what he did with regard to mr lopez or what he would have done is consistent with what he did with december of two thousand causing him to go see talent or to reveal something that as a result of what he revealed to dell injure that dell injury part of the matter to prison officials and that because dell and the reason dell and you did that is because believed it was his duty to report matters concerning the safety of inmates and further that ramos then left the f b i facility immediately thereafter and i've set the court to s t r seven thirty six to thirty  seven ninety one to ninety three and ninety six to ninety eight with that significant evidence in front of the jury defendant's theory was clearly argued and was supported by the evidence the jury simply chose not to accept it with regard to defendant problems argument on the inmate profiles that evidence came in during the disruptive groups i mean that's the extent of it i'm a juror i don't quite understand why he said suspect remember it doesn't quite sound by the time he's finished as though he made a mistake it sounds rather something else going on i can't figure it out so he says aspect of what came in with regard to that evidence that there was never any argument that mr public was a gang member there was never any further discussion about when that's how that's quite right because the element defense attorney makes quite a point which he was interested in getting as evidence then and then he made quite a point of argument of the jury mystery element is not a gang member like all the rest of these guys your honor i believe that you know amends and i apologise to the court my luggage was mr pablo says or i'm sorry that mr the elements counsel argues you know i'm not saying that they've done anything because mr pablo specifically said that they didn't during parts of his statement and there are significant reasons why you should not believe the government witnesses and so pablo never points the fee says yellowing had nothing to do with cans nothing to do with drugs nothing to do with the parties in this case and says you heard to some extent your honor but if you also look at how the crips evidence came in mr barton was cross examined regarding that by our counsel mr thomas was a crap that's why that evidence came out extensively with regard to their connection as far as reservation the government's evidence was that the connection between individuals in the prison was according to racial groupings as opposed to any kind of gang membership gang membership and street gang parlan street gang evidence was introduced by defense not by the government the i know and part of the trouble of having me there's overlap substantially with the severance argument the government wants all these people in together and it's going to be clear in all kinds of severance cases but the defendants like to point the finger at one another and i mean that's why the government wants them all in there so that everybody looks guilty that's why the defendants want to be put to put apart but putting mr disadvantage of mr palmer or both of them resulting from the fact that they're being tried together and had they been tried separately neither one what neither one would have interest well that the task before the court is were they mutually antagonistic did you have to acquit either yelling our problem because of their individual cases and the government's admits that that's not the case because they in fact had similar kind of defenses where they were attacking the government's case now in addition yellow man had a second argument which was i was associated with these people but if you look at the test this court has established were they mutually exclusive did you have to acquit one if you convict of the other that's not the case here so and the supreme court has said just because you have a better chance of being acquitted because somebody else is is not tried with you is not the test for determining severance ok so perhaps it wouldn't have been more fair to try them separately but was are now ok competency hearing that he did not observe as he would normally have that that was part of the practice the interaction between defense counsel and the defendant to see if there was that ability the rational belief to assist in the preparation of defense and he did not do that in this case and then finally with respect to the voices issue that was not the crux or the basis for the finding by doctors m conner that mr moore was incompetent by virtue of being unable to assist his defense counsel it was seized effectively reasoning ability which has all the other causes that i mentioned earlier and that are in the brief the voices was just one little you your honor to address a couple of the issues that the governments of the went to this was able to get in a great deal of evidence concerning what bill injures testimony was and exhibit two or three granted i may nibbled around the edges but the judge restricted us from getting into specifically what happened concerning mr ramos concerning mr dillon jer concerning the e mail that he prepared as part of this investigation dylan was in charge of so we don't know what inference that the jury drew but what we do know is that the judge didn't let the evidence then that would have shown exactly how full went to h reacted concerning the exact facts an area that the government used as the basis of their case your honor is there any question that if the evidence concerning romas had been at fo sat pretty new through most of the sixteen day trial we had four witnesses about him those were six days after the eight day of trial we just sat there the government rested on the eight day and the put on their defenses the government put on rebuttal mr pablo didn't testify we didn't present a defense i think that coupled with being tried with yellow man with yellow man part portraying him as a crips and the connection between was inaccurate in some of my cross examination i brought that out from mr thomas that mr pablo is actually a healer river paymah indian and also of course the court wasn't there and didn't see but mr pablo was quite large  was quite large there both a mother both related that way i guess but the critical information coming in and left this painting on mr pablo that he was each shows to be a gang member he a born native american but he chose to be a crap he's a loyal to mr thomas because of that and the whole case is based upon what he was told to do and what he talked with a lot of people there was not one shred of evidence that he actually did anything other than talk and that i believe was the reason the jury found him not guilty of aiding and abetting in this murder said and i think the jurors certainly could have found he was a member of the crips and i think that's the reason we have such an odd verdict that he didn't do anything to aid and abet and assist in the murder but he conspired to do it  well from your standpoint if you believe the testimony that came out against him pretty good i will are and from thomas you just are i mean that's what they said well they said that he was told to do certain things and he said he knew about the plan there is nothing to show more than he was puffing it with aguilar in in front in front of aguilar and that thomas is telling him do this do that and we haven't even touched on this crazy directive about shouldn't meaning carry out the murder as planned and there's nothing to show that he was doing more than getting directions from keith comus implying that prison game of talking again there's nothing to show he ordered anybody to do anything the order to mr moore was supposedly given by mr thomas long before ok and i don't think it it was a