government's case against mr of a school was the testimony of its cooperate in witness cecil gar a key component of the defense was to undermine the good faith of the government's investigation and case and the reliability of mr gar by introducing audio video recordings showing the investigating agents repeatedly telling mr gar that he needed to plant pin the blame on mr of a screw so for example at the first meeting between the agents and mr gar which was audio video recorded they said to him if i were you i'd do whatever it takes to pin the blame on the screws oh and help myself out at another point they said if you don't help us pin him the cold hard fact is we have two suspect this investigation you're one of them at another point they said there's a whole series of charges it's going to be dished out you're going to share those charges the screws though the more you help out the more maybe those charges could shift to him at another point they said if you don't want to participate and you want to help us then you will also become a target of the n c a a s there were many many statements like this made in july two thousand and fourteen months before mr garza arrest by the agents to mr gar and on october twenty second two thousand and fourteen the day that mr karr was arrested it wasn't just these statements pressuring him to pin the blame the agents set out the story that they believe mr gar tell which in a nutshell was that there was all this material piled up on his lot he needed to get a lot closer cleaned up mr fisk showed up and said oh i'll buy the stuff from you take it off your hands  pin the blame shift responsibility those sorts of things as initial matter the progression of the agents feeding mr gar the story none of that ever came and because i was unable to play the audio video record i could you could ask him well when  want to play the river a bit or the recording saying i'm sorry you didn't ask him if i have this right question and what they told you is they wanted you to give them a name and if you didn't give them a name they weren't going to be able to help you write and he answered arguably falsely look what they told me is they were going to they were trying to they were going to allow me to help myself so you needed the tapes because he's denying in effect the very critical question that was put absolutely and what you can see in the record is that early on in the cross examination of the r five seventy two in five seventy three when i'm allowed to play the first of those clips that i prepared to use he's shut down when he tries to say to me that this isn't going on because i get to play them saying you know we believe someone was trying to manipulate you that someone was the screws oh he responds i don't know who you want me to rat out and then the agents say to him we're losing our ability to help you but the judge cut it off right after the rat out things that stop it stop it stop and that's the only time i got to play a recording and you can tell that because the transcript says recording played a few other times i play the recording to refresh his recollection with headphones on the jury didn't get to see any of that but what's interesting is the thousand videos be hearsay no absolutely not i want to know i was an interview sing them to show the truth of anything that the agents were asserting i was using them to show that the agents were pressuring ghar and feeding him the story that they wanted him to tell which eventually he did tell that's was his trial testimony in a nutshell what i just gave to the story that they  and what's interesting and i think it's because gar could tell that i could introduce these tapes he'd seen me be shut down and so we started playing games with me and he started saying things like i don't think they wanted me to name him specifically my impression is that they wanted me to admit my involvement in the crime itself and that's it you are two five seventy four right after i had played the rap you know who do you want me to rat out clip he realizes the clip stopped he realized i can't do anything and he keeps doing that sort of stuff there were two major reasons for playing the tapes which i've said braided them in my briefs one was to show that they pressured ghar to pit pin the blame on the screws o help himself financially go get a lower sentence and that sort of thing and then the other clips were focused on inconsistent statements that gaar made between those interrogations and at trial so the reason for the former and sorry you're on the reason for the former was again to show that gar had been pressured to make these statements had been fed these statements and had been told that if he did this he would get a payoff that if you were able to ask him those questions were extraneous to being asked to being able to questions but i was almost completely prohibited from asking those questions and when gaar realized i could not make him pay for his lies and his dissembling he dissembled further and you can see that throughout the cross including at york two five eighty two five eighty three he can he repeatedly tries to deny that they have pressured him or he was affected and the prosecutor picked up on this too because in the redirect she got up and she said to mr gar did you believe the agents wanted you to shift the blame to the defendant garri answered no those tapes would have blown that out of the water if i could have played those recordings that would have absolutely blown that claim out of the water i got up on this earth to look at the end because it looks like the disk court ruled that the statements of the agents were hearsay and we give it's abuse of discretion standard on whether he was in correct on that i know you argue differently you argued at the time differently wasn't just on your appeal you said at the time judge i'm not offering these for the truth i'm offering them to for the reasons you just mentioned and the judge never the less in ways that frankly i don't understand so they were hearsay and i didn't understand if i could just finish sorry so i know that there's a disagreement about that but he did allow the court allowed you at least once to play th complaint that you have stems from what you were the attorney down below yes your mis understanding of the scope of the district court's ruling on your ability to use the video to impeach gart because from filed a notice after gars testimony where you recognized that you may have pulled back from seeking to admit many of the statements reflected this is that in our two forty three you pull back from seeking t many of the statements reflected in the audio video recording based on the court's rulings and that you realize however that you may have mis gauge the intended breath of the court's rulings that's right i was i was frankly dumbfounded by the rulings because it was obvious to me it was not well that some kind of verses misgave the breath of the court's rulings but i couldn't understand why statements from the agents pressuring mr gar to pin the blame oh could be construed as anything is being introduced for the effect on the here which is what i said to the court you have identified at least in your briefing any specific portion of the video of gaar statements that you were well i lodged the video with the excerpts of the video which i'd lodge with this court and the excerpts with the court and every time that i attempted to say to gar in the agencies say to you nearly every time i was met with the sustained he action including after the prosecutor did what she did on the redirect of having gar say no i don't believe they they want to be a shift the blame i got up then and tried to clarify that again i said the truth of the matter whether or not they wanted him to shift the bl the truth of the matter that was her question she asked him did you believe the agents wanted you to shift the blame which really is the effect on him what he believed based on the effect of him but that was her question i got up and said the agents in fact repeatedly told you to shift the blame and you would bear less responsibility and hearsay objection was sustained do you argue that you were able to impeach him regarding  yes i argue that i was not able to effectively reach and why not i mean a lot of aspects of the plea deal the critical core aspects that normally come out in a plea deal came out one of the important things with i wasn't able to get with the front end benefits which is that he effectively got a four point reduction reduction from five hundred fifty five thousand a loss to two hundred thousand dollars and that affected his guideline range and it affected his restitution amount that is something they gave him in the initial agreement they offered agreement with higher guidelines and i restitution he wouldn't take it they offered agreement way to cooperate with lower guidelines and lower that came out the what he was getting for his plea came out soley the restitution point not the guidelines point and the judge said i couldn't get anything back guideline sensing was for the court and then the restitution point the government got up in its rebuttal closing and said that i had misled the jury on that point when i didn't mislead the jury and i pointed  car should have been on the hook for at least five hundred fifty five thousand dollars in restitution but the u k and the you were able to get out before the jury that he got a lower amount in exchange for testifying i was able to get out to this if he got of restitution your point is that under the guidelines the significance of the loss about is not so much for restitution but it tremendously facts the offense level and that by reducing the amount of loss through the change in restitution they were giving him much less exposure in return for their testimony that he now was giving and that was never able to be brought to the attention of the jury in any way shape or form do i have that right that is absolutely correct the fact that he got benefits for his testimony was brought to the jury so the extent to which the that that is correct that's not the guidelines the restitution point came out he admitted to that the judge would let me get into the guideline is it your one ninety six that he got out but i may be wrong but i had written that down where to the extent i got anything gar took it back the government took it back and i was unable present that major component to the jury which undermined the good faith the government's case i was able to get out some stuff about the benefits to gar but i wasn't able to get out that they effectively gave him this front and guidelines benefit before he even testified and then what they were offering him i wasn't able to effectively get out what they were offering on the back side because i was unable to explain the guidelines to them and was unable explain the plea agreement  which of the two thousand and seven case i don't have the the opinion handy that makes clear that if there is tension between not revealing you know that sentencing is for the jury and a defendant's confrontation rights they have to that tension ha defendant's confrontation rights and here i was just trying to make clear to the jury what benefit gaar was going to receive had already received and stood to receive in the future not to say anything about m sentencing but if there were any any impact on mr vsquez a sentencing that could easily be addressed with the limiting instruction which the judge gave anyway i don't know of any case correct me if i'm wrong that says it's not totally proper to bring out what sentencing benefit it cooperator is going to get for his cooperation that is for the jury because it's totally goes to the bone of the cooperator to lie and i think that's absolutely right and i cited schoenberg i cited philips again the larson case i think makes that point i mean if we can't you know  larson talks about not just giving the jury an idea of what the person stands to gain but the magnitude that the jury should be apprised of the magnitude of what do you have a case where the actual get my calculations were given to the jury  i don't off the top of my head i can look for one thing that when he jerry unusual for the jury to be apprised of how the actual guidelines work with the calculations are what the downward departures are there just isn't normally given to the jury well but for example here let's take an obvious example mr garcia should have been should have been hit with an abuse of trust guideline adjustment it would happen in any case now how am i going to explain that to the jury without having some reference or some explanation guidelines it's impossible and should mishaps that's why the judge so that it was not appropriate to go into it now because it could confuse the jury in terms of what the jury is supposed to be deciding what i think i need to explain to them what it is that he has been how he has benefited how he stands to benefit but i want to step back from all this because you know i started my argument on the point of the pressuring him to pin the blame pressuring her to pin the blame and feeding him a story which he told that's separate from all this stuff that's separate from the guidelines benefits that separate from the prior inconsistent statements that separate from the fact that the judge precluded the guard lied to the pretrial services officer in this very case in an because it is disturbing i've never seen anything like it agents telling someone to pin the blame and i'm only doing it which i think shocks the conscience but doing it with the with the video audio video camera rolling i mean i think that that gives that that that would support colorable motion to dismiss based on a due process violation and if that's so certainly the jury should be apprised of that counsel are you saying that the only evidence against your client was mr karr's testimony no it was the key evidence so because all the other evidence in case made it apparent you know he's going on he's driving a dump truck and a base where he's confronted by our marines he's giving them his id he's giving them his truck registration he's been checked when he leaves the base he's going when he goes  appeared to him that everything was above board and that he had a similar arrangement with the person who was getting metal from march air force base he said he's trained and they have policies still learn them when maybe the metal stolen because that kind of thing happens and he thought everything was completely above  clarify the record the defense counsel was not prohibited from inquiring as to the effect of the plea agreement on the last amount in this case if you look at five ninety nine he specifically asked the defendant you realize plea agreement the government agreed to recommend a portion of the guidelines that go up based on the amount of loss that they would recommend a lower amount of loss than actually happened right he says that's what i see on the paper and then the offense counsel continues and previously you had another plea offer that recommended a higher amount and the defendant says he didn't remember in addition prior to that the prosecutor herself in direct examination asked him what his understanding of the plea agreement was with respect to the through the reduction in the god much where's all the jury is hearing is about the money aspect of it and my understanding from your adversary he says when he tried to get into the real significance of it which is a great big benefit on prison time he was preclude he was precluded on the right eroni in my view reason that this punishment is not a concern of the jury this had nothing to do with punishment of the defendant this had to do with the benefits given to your cooperate i don't think that's accurate if you look at the car the fact that he was precluded from talking about the benefits i think if you he asked about the last amount of the united states at present i'm trying to say that the loss amount by itself means nothing to the jury in the same way that it's effect under the guidelines on wasn't precluded well was he allowed to then ask about it so he asked about the specific loss amount the defendant acknowledged that that's what the plea agreement said and the prosecutor to go to your point your honor had had previously we didn't just say the last amount  to restitution she specifically tied it to its effect on the sentencing range what the defendant was precluded if you read the entirety of the exchange after the discussing the loss amount and the restitution he then moved on to these other guidelines adjustments and that's where the court started cutting him off and the reason the court did that is because it created what he argued was an obvious inference that this was a benefit the defendant had received but the facts prior to the police negotiation shows that both defendants from the very beginning got the same plea offer that didn't include obstruction and didn't abuse of trust that those benefits although it would create an inference that maybe those retired cooperation both defendants receive the same benefits from the very beginnings of what the court a very substantial benefit why wasn't that or your honor for the same reason both defendants before any cooperation before anything the very first plea agreement and had already eliminated that statutory maximum had already eliminated a lot so we're talking about the benefits given to the the cooperator gets a five year benefit in terms of max huge benefit the he's asked about it  and he in my shoes suggestion lawyers car that is the cooperator and soon as well you hope to receive a lower since he did not expect to be at all where as the plea agreement guaranteed get rid t that the most he could get was five years and that was precluded from being put before the jury but your honor that what the court held before trial was that limitation from ten to five had absolutely nothing to do with the cooperation everyone had that day because both the that was the very first plea offer that went to both the defendant but he knows the defense argument was the moves that if he cultivates if he goes along with the government if he will get a reward in terms of this reduction i understand it was before he gave the cooperation but that doesn't mean he wasn't a benefit that he that it impacted how he was going to testify how could the jury not know about this great benefit that he received from the government who now say asking him to nail the defendant your honor all i can say is both the defendant without any cooperation agreement without anything at the very beginning in february both defendants got the same benefits in the guidelines and in the mandatory minimum and it would have been misleading to the jury to suggest that that first offer had anything to do with gars later cooperation so what do you say shifting gears for a minute about the tapes about the videotapes here we have agents and i think defense counsel is not without cause in saying that their activity shocks the conscience i must say i've never seen  in my twenty three years on the bench agents act the way these agents did and there they are and they're saying you in more or less explicitly you got ten thank you  we're not going to help you if you don't and the judge says oh no we're not going to allow that except for one limited part we're certainly not going to let what the agents say because that's hearsay it's not hearsay it's being offered to explain why he knew he had to nail thank you so well your honor i guess my response would be on the on the hearsay issue the only way that this would come in as an effect on the listener would not be the effect that it had on mr gore at this interview which was to four years before he testified it's sort of an additional break that he whatever these agents unsuccessful tried to get him to cooperate at the early part of the interview that that had an effect on his testimony years later after he'd entered into cooperation agreement with and cerny well how do you say that when they're making plain plain to him that's what you if you want to get the deal you've got to nail thank you so so you think he forgot it because two years passed well he certainly didn't accept their offer to  time later on he does and when he does and therefore isn't it fair for defense counsel to say well what changed between then he thought it over and he thought she i can get a really great deal if i nail thank don't want to do it because it's not true but now i realize i can get a great deal and if the jury had understood that they might have concluded he was a liar well your honor i would say that if you look at the title of the of the cross examination on that first day the court didn't completely eliminate the defense's ability to to discuss or to introduce sections of this interview what happened at the very beginning of cross examination defense counsel stood up set up equipment and started the press play on the video and the court after an objection said well you have to ask and ask him some questions first to see what he actually says before you can impeach him with this material and then when the defendant denied saying that he had asked them about ratting someone out they played one section for the jury and then there were four or i think five other instances where the defendant either stated i don't remember it that way he was  privately allowed to watch the video and then he testified yes they asked me if they were putting pressure on me or that they wanted me to pin it on mr karr after those four inner cities me on  after those four interview clips defense counsel sort of moved on to other aspects of his cross examination as your honor noted he hasn't pointed out any specific clips or a in addition to those four that he tried to get in and was prevented from doing so instead after a break over the course of the night he filed a sort of notice to the court with forty some odd pages of transcripts and requests that the court rule which one of these he would have allowed in had he attempted to but this was in the middle of cross examination he came back in the next morning certainly the form that he was allowed to get into this stuff was was not what he wanted but over the course of the night he certainly could have come back again and continued asking questions so so are you are what you say are you saying that to the extent the judge x excluded him from bringing in the statements of the agents on the grounds that they were disagree with me on this but to me it's open and shut that it's not hearsay that to the extent it is for the effect on the listener it would be sort of years later after a council cooperation agreement that somehow affected his testimony in trial and it wouldn't be an abuse of discretion of the very least for the court to say that that is not read sort of relevant enough to enquire and cross examination and if you look at the letter from the defense counsel he even suggested after listing all the things he wanted to get and that maybe it would be better to pursue this line of questioning when the eight with the agents and say what you know inquire with them what they were trying to do with mr gar and to the extent that they didn't remember had differing accounts of what their and carve testified on redirect that this was a two years ago and he didn't remember the specific right the specific instances well the jury was able to listen to guard testify against his credibility and look at for two reasons even if the sort of nature that these videos were allowed in or the amount of that that specific line of questioning was allowed and it was improperly excluded there was a wealth of other impeachment material that the defense counsel pursued against mr gar first of all in the case in chief and every single witness that had interaction with this mr gard testified that he was  trustworthy that he was lazy that he needed supervision multiple people testify that he was had a reputation and for being untrustworthy then on cross examination the defense counsel got out the fact that mr karr lied to the tenant colonel who gracie that he had lied to the initial investigator o'brien that he lied to investigators at the first interview that he lied to investigators at the second interview including right after they had warned him that it was a federal offense for him not to tell the truth that he lied about why he was fired that he lied about shane coming to pick up the scrap metal and that he lied about the rohloff you know disagree in the and his testimony was critical to the government's conviction you're just saying he you feel he was adequately impeached because of these other things no your honor he certainly was an important witness for the government but there was substantial other circumstantial evidence of the defendant as the district court held in the motion for a new trial this was effectively a one issue trial no one was disagreeing that these two correlated together to take scrap metal off of the base and sell it in return for five hundred thousand dollars the only issue was whether mister believed that mr gar had the authorization from the marines to sell him this money for cash and that that money was going back to the treasury and why and then the centerpiece of that your car it's he was like i said he's he was important as far as i tell you just tell me the issue is whether he believed that mr gar had authorization not and and the person who is in the best position to offer evidence on that was mr gore which he did yes your honor but the other evidence if you took gar out of this trial altogether what the jury would still hear is mr miscues so arrived on the base pursu actual government liquidators contract that he signed as to how you're supposed to go through the vetting process to get this metal that after that first pick up that he then proceeded to pay cash including from his own witnesses cash from that he took out of the liquor store m to pay mr mr gar that this continued for years and then critically that he knew that there was a contract in a process for doing it and that when o'brien called him he told her he was with government liquidators he told her he had a contract and he told her he would fax it right over but then never did and then never returned our calls and then there was the evidence of his post arrest statement that if you look throughout the sort of evolving story that he starts by saying again i had an official contract with a government liquidators i picked up a couple loads with my dumptruck and then that story changes over the course of a couple hours with him eventually and getting that he arranged for these roll off dumpsters to come on claiming at the outset that he had receipts for all this but that they may have gotten wet in his glove box at the agents couldn't find them claiming that he had reported us all of his taxes and then changing his story and saying that well knows someone of at the yard told me that i didn't have to pay taxes and then ultimately at the end saying that he put it all together and realized that it was wrong but had to pull pull it off put it off slower bring it off slowly i'm sorry so that sort of chain of circumstantial evidence whol application to the fore for sure judgment seems like it does i'm trying to figure out if the district court judge ever really had a fact finding sort of hearing on determining whether or not point two b because he was only seeking a money judgment the procedural rules wouldn't apply the same as if there were forfeiture of property and that this court and newman held that forfeiture serves an entirely different purpose than restitution so the fact that he may not have kept the totality of that five hundred fifty thousand dollars doesn't affect the ability to forfeit it are you familiar with honey i'm not your guys unless the court has any other pressed him and pressed him to pin it on the surface do so because without the cigars testimony they couldn't get a conviction i've tried several federal criminal cases i've won a fair share this was the strongest case i have ever defense case i have ever had other than mr gars testimony if i had been able to bring out just the part about the agents pressuring him i am confident that it would've been a not guilty verdict i went in confident of the case going in the case was effectively shut down the defense was shut down regarding the harmless error and i did make it constitutional confrontation due process harmless error claim the government did not did not counter it in its answering brief that claim is waived regarding the guidelines amount you know to make the front end benefit argument i had to be able to bring out evidence as to what was in the initial february two thousand and fifteen offer the proposed plea agreement i wasn't able to do that and god was able to shut down that line of questioning by saying i don't remember i can't make that connection that they reduced these guidelines loss amount if i can't compare the one that he rejected from the one that he accepted and regarding the idea that i was able to somehow get that out because of her questions about the guidelines last what the questions were was was that the last page you know your guidelines amount that was it nothing about the change in the two agreements because a judge would let me get into it regarding the both people getting the same both defendants getting the same offer it's simply not true they got offers in february two thousand and fifteen which they both rejected mr gard got then a cooperation offer in april two thousand and fifteen that sweeten the pot and he took that that offer was not made to mr vsquez so that i can offer that's correct mr cooperation agreement from mr vsquez so mr vsquez it was already signed up front and paid back and offered mr gonzalez mr gar was already signed up to cooperate front and paid that they would have no motive to offer it to think that's right th weak where's your case against mr gar was very strong that if they made the same offer to both of them why would likely because the whole issue is the effect on mr gar and what his incentives are and his incentives  when he's negotiating that agreement by the way just a couple months after these conversations with the agents not years later he's negotiating that agreement with the agents and he knows what he says to say he knows what they want to hear to cooperate he strikes a cooperation deal after rejecting the first true except i suppose the fact that he's cooperating that you know he's going to testify against you and implicate you as a motivator and getting you would still get your cooperation creditor sure it done proper sessions that if the deals were the same but the deals the deals weren't the same and even if they were the relevant thing for the jury or why weren't the deals the same i mean the only difference was that mr carr was going to cooperate because while that's the big difference i want to know that you said everything else was this i mean that there were they weren't the same but that's the only difference that's right that's a critical difference they are the way the offers are made months apart they're made seven months apart the first offer is made to mr gar to get to sign him up as a cooperate or and the