i'm going to stab him if he comes to my cell to my housing area and he goes to yours i want you to step in mop heard is very vague but it leaves a lot of things open and it doesn't conjure up images of the violence of a jailhouse stabbing never mind the recruiting somebody else to do jailhouse stabbing themselves and there's the cumulative effect of these things of that coupled with the jurors the jurors hearing that mr munoz was spent two years in jail from two thousand willingness to do it and in fact it's more prejudicial here i think then i think wasn't cummings case in cummings it was more hypothetical it was you know if he threatened to shoot the person but of course he's in jail so that's more theoretical and hypothetical whereas here it was about mr munoz saying what he would do actually in the jail and encouraging mr nicolle to do the same thing in the jail so it's it creates an even greater danger can't be sure that the jury wouldn't use it decision on this issue that an appropriate limiting instruction can be can make this all right was there ever a limiting of sharks and given there was not in fact incomings this court noted said that he would give limiting charges but then he never did it was it was never raised again during the george conference as far as a as far as i could tell and didn't want to have it reiterated and i made a strategic decision not to request it know i i don't know of course it is outside the record as to what was going on in in that counsel's mind of course he did object to the evidence coming in the first place on through three grounds he did know that the court did say that it would court also noted incomings that the prosecution in the summation then used that evidence incorrectly for purposes for what she was not offered and actually told the jurors that this was evidence actually of guilt as opposed to the  then the government says and you know why i cummings and munoz made those threats you know why cummings and munoz did not want those people to testify cummings and you know as knew that the testimony would be very very damaging them to them a trial isn't that consciousness  jury to consider such testimony for impermissible purposes in light of this improper tut description of all these death threats just one of the jury even if it would otherwise have been proper for the government to argue in its summation that the death threats even scott's guilt we cannot conclude the government placed no undue emphasis on the threats and that's because the prosecutor actually told them that this was actually devastating proof of guilt and when you go further looking at the language and that testimony ladies and gentlemen was in fact completely devastating proof of both defendants crimes prove that was corroborated again and again by the other witnesses and the other evidence in the case couldn't that be the devastating print being the proof that the  defendants did not want the jury to hear namely of the defendant's guilt it could be but the undue the emphasis they put the they put on it in the way they pick couched it i think made it sound like it was a the court found it coming said it was from an improper purpose and put such emphasis on it that it exacerbated the prejudice of allowing it in the first place and made it sound again the murders propensity the violent propensity of mr munoz was what they were counting on there and you have this testimony right put in for the hearsay issue again the court actually was in examining the home of sarah was looking at the the minimal value of the of the testimony in the first place regardless disputes guarding even the hearsay the hearsay nature of it so about the minimal the minimal value of the nape of the testimony in the first place and how it was overwhelmingly prejudicial on the other hand that's i'm going to give you a couple more minutes and i'll give it to the government as well i would like you to speak the instruction and interest interest of witnesses and the instructions specific to the defendant by a couple of sentences or a page doesn't change that so well when the court to find interested witness it says interested witness is one who has a motive  that's why falsely and then some sentences later tells the jurors by the way the defendant is one of those interested witnesses obviously a simple syllogism gets them to the foot to the point that the judge is telling them the defendant therefore has the motive to testify falsely separating them i think if if the judge had told them and followed up just right away on the interest witness instruction said by the way mr munoz isn't interested witness would be very clear undermine and this court's cases i don't think separating it was given those messages directly in fact when asked how he heard of those messages and how we knew where it came from he said that somebody told him that those messages before mr munoz that's hearsay he never identified that that intermediary he there was no exception claimed the government claims that there's somehow a coconspirator hearsay exception to it although nobody knows the identity of that person they certainly haven't made out that intermediary had the same intent of mr munoz even if mr mihos was the source to be coconspirator that intermediary would have had to want that that statement actually had the desired effect as opposed to simply being a messenger and saying by the way somebody says this i'm just passing on the message there's no evidence that the person missing united states attorney in the southern district of new york i represent the united states on this appeal i did not represent the united states in the trial below yours additional court did not abuse this discretion in its evidentiary rulings during this three week trial in particular district court did not abuse its discretion in admitting evidence that the defendant threatened to kill a cooperating witness and use case it was error not to give the limiting instruction no your honor not in this case where the government raised this the fact that for three four or four be evidence regarding consciousness of guilt had been admitted and flagged for the court and for the defense that there is a possibility of allin instruction that could be given it's part of the jury charge and the defense chose not to request such a limiting instruction they therefore waived their ability to argue for that instruction and it's a strategic probably a strate decision to do so by the defendant in this case never asked for the corrective for limiting instruction on the jury charge they did not your honor no and the reason why there's good reasons to believe that that was a strategic decision here namely that the government did flag this issue and say that reminded the court reminded the defense that this evidence had been admitted and previously in the motion in limine a the court said that they could provide a limiting instruction and would be open to providing a limiting instruction the government never opposed any such limiting instruction and the defense simply chose not to request one probably because they didn't want more emphasis to be placed on the stafford evidence which wasn't a major part of the government's case but was strong evidence of consciousness of guilt as defense counsel discussed this this evidence came in through a cooperating witness it was direct evidence it wasn't this court has said is toxic to put in evidence of a death row and what was the purpose of introducing we are the purpose was to show consciousness of guilt that because mr munoz was guilty of these offenses and knew these individuals knew about his guilt namely bruce houston who was a cooperating witness like it was introduced so the jury could conclude that there was a propensity to commit these awful murders that was not the government's purpose your honor and this was extensively brief before the difficult part it was always the government's purpose in introducing this evidence to show consciousness of guilt by the defendant that if the defense counsel opposed it and in a written brief the government sought to admit it in a written letter brief to the court additional court issued a well reasoned written decision and meeting the evidence right i have the judge's decision here  of introducing this particular piece of evidence about the death threat which as you know incomings even though there was here are so a panel of this court found toxic enough to order a new trial yes short of that the court found in that case because the hearsay was admitted improperly that it wasn't harmless error we were in a much different position here where the question is whether the district court abused its discretion in  evidence under four of three and as your honor knows there's nothing different about the four of three analysis before this court when it comes to threats evidence and this court has said that when evaluating additional court's decision under four o three you maximize the probative value of that evidence and you minimize the prejudicial effect the value of the evidence was to show consciousness of guilt the court this court has held multiple times as well as talking about the evidence being potentially toxic has talked about the very probative nature of this evidence in the united states the bains talked about how this evidence can be very powerful in that it shows that in that the defendant who's munoz argued that he killed meat young in self defense it was legitimate for the government to seek to introduce competent evidence that after he was charged for this offense he threatened to kill or harm a witness thereby showing his own consciousness of guilt as opposed to and to rebut the argument that he committed the offense in self defense your honor the government's evidence was strong but this was this is one piece of evidence that could be admitted for a limited purpose here to show consciousness of guilt we flagged the issue repeatedly we raised it in a brief the additional court gave a well reason his discretion in making that for all three balancing so the important focus i think here is the distinction between this case and the case against mr cummings where the court found that hearsay had been admitted and the question was on the overall record of the case was that hearsay evidence admission of that hearsay evidence harmless here it's a much narrower question the question is whether the district court abused its discretion was powerful it shows consciousness of guilt the presidential effect here your honor is is is minimal in this particular case the defendant was charged with a brutal murder the court looks to the incremental  prejudice and looks to how prejudice is the evidence in relation to what the defend inish charged with he's charged with a murder it's not it's not shocking or incredibly prejudicial for the jury to hear that the defendant also threatened to kill a cooperating witness so there is progress value in the prejudicial effect here with slight to just address the summation and judge abrams you mentioned that the way in which the government argued the evidence had nothing to do with propensity the government never said anything about the defendant's criminal propensity or that this threats evidence showed his criminal protect propensity or his murderous propensity testimony would be very very damaging to them at trial that's classic consciousness of guilt argument there's nothing about propensity there and when the government then said it's absolutely devastating evidence that's a rhetorical flourish on that very point about consciousness of guilt it is devastating evidence of the crime to show that the defendant knew about the crime knew about the witnesses against him and sought to harm those witnesses  forms of purported hearsay that were challenged by the defendant in this case mr your testimony he's one of the cooperating witnesses regarding statements made to  him by mr mccollum who is one of the participants in the in the shooting that led to the death of mr young those are clear statements against you know interest by mr mccollum mr mccollum but the messenger may not have been a member of this conspiracy or we don't know there's no evidence your honor and that's that's on the on the request by mr mr munoz that mr yo not testify in the present that you are in the government makes the argument that those those statements are statements made in furtherance of the conspiracy there is one of one of the statements is no evidence that the messenger was a member of the conspiracy so how could the statements be made to benefit the conspiracy we don't even know who the messenger was i don't think there's a record tell us it does not say in the right we don't know if he was a member of the conspiracy or not therefore how could they have been to further the conspiracy you're honoring goot the court said that  can look to the overall context in which the statement is given and also look at the statement itself to determine whether there they are in furtherance of a conspiracy here the conspiracy was to obstruct justice it's clear that this messenger that this individual was communicating on behalf of mr munoz a desire for mr euro not to testify in the government's view here that it was not an abuse of discretion for the district court to admit that evidence even if that my question i understand he said he did it but he said he did it for this defensible reason he said he did it in self defense right it is but you know he didn't that was the point but the consciousness of guilt also goes to his state of mind so the question for the jury was whether to believe that mr munoz shot mr young in self defense or whether he simply murdered him it's is relevant evidence start or conscious  at that that question for the jury it does show that the defendant was so worried about his own guilt and knowledge of his own guilt that witnesses would testify about that guilt that he was willing to go so far as to threaten to harm that witness and it is evidence that could go to rebut a claim of self defense in this case is there any case with this is been used to rebut self defense or  o a defense based on self defense is there any evidence that we allow almost anything to prove consciousness of guilt when the defendant testifies but i did this in self defense i haven't found it but if you have any cases i would be very interested in having them i don't have a case on hand to that specific point your honor but the government's argument is not that almost anything can come in if the defendant testifies th argument is that in this case on a well reasoned arguments by both sides additional court did not abuse his discretion in deciding that this discrete threats evidence was more more was probative evidence of guilt and that evidence was not substantially outweighed by any possible prejudicial effect and for that reason your honor the conviction should be affirmed thank you counsel thank you are two minutes for  thank you first as to the at the death threat evidence i think the government sort of just made my point they would the death threat evidence was brought out through jose nicole about threats supposedly made to stab cruz houston submit that because they can't get out of there of their way of thinking that it showed that mr mr munoz is a violent person willing to take things into his own hands and be the initial aggressor against mr young as he supposedly was going to guilt evidence is when it's supposedly threatening a witness who you think is going to be testifying against you to think that it's automatically because you know that you're guilty i think is is actually not correct if they know that testifying for the prosecution you know they can be testifying against you you know they're going to be saying things that hurt you but it doesn't mean you know the truth if you have the same incentive if you think that person is going to be lying against you and making up and fabricating stories to lock you up for the rest of your life you would have every incentive then to do something with threaten that person it doesn't mean that you know you're guilty but you know you didn't act in self defense when you did it said you know this person is going to be acting on behalf of the government has a deal with the government as can be lying against me to lock me up that's the problem not that i know i'm guilty but that he's going to say i'm guilty i think that i'm about to finish my time thank you arms thank you thank you very much very well argue judge winter before i let these counts go do you have any questions thank you