my name is fred ass and i'm from reno nevada and i represent the appellant a little bit of background here in this case i think is kind of important for several reasons  as far fand left mexico the southern portion of mexico down your guatemala when he was about thirty five years old he left mexico at the end of two thousand and migrated  california and he was primarily a farmer he came from a very rural jungle area in southern mexico he'd never been in the united states before he had no criminal history when he came to the united states he the potato sorting business petered out it's a seasonal thing and he scrounge jobs from wherever he could because he didn't have papers he was illegal and he eventually started doing pickup work small work was well now mr blanco was the target of the d n a target of an investigation and an investigation concerning blanco commenced on or about september of two mr alvarez insists up to this point in time was totally unknown to the g e a and as i stated had no criminal history about september twenty first rivera and i will call him from the outside having run a weedeater we was working in the yard and it was quite hot out at that time i taught in september and when america and you got a drink of water and went back out all the negotiations were between blanco and rivera mr alvarez again on september twenty eighth he was allegedly employed to deliver an amount of controlled substance for blanco to a motel room now that cheney in question that would be take an eight and change later and nine was taken on october sixteenth would be the total and created the transcript of the change be produced so i could use that person is a witness the judge elected to exclude the tape and that isn't something i really wanted but i asked for it and when it was done i was kind of surprised what i preferred and what i what i requested because as you know in foreign language situations it's the interpretation of the tapes that's actually the evidence and so i wanted the expert opinion of interpreter that was employed by the government to come to court and i wanted to offer that person's interpretation of the take because that is the actual evidence under nicer law well what occurred was after i made my defense known that tape and eight was a different person and seven and nine and my client always admitted that he was on tape and seven and tape said nine and he always but what occurred was very peculiar during the course of the trial when when we started getting into rivera's situation rivera was a professional informant he did it for the money he was able to stay in the country he was able to make money off of his service to the g a a and perhaps to immigration i don't know but he was of service to the government to the united states government rivera was brought to went to market to further this association with blanco in order to cause blockers arrest however he didn't have any negotiations concerning the substance with alvarez what he did was he negotiated almost exclusively with blanco and during the negotiations actually he and blanco decided according to the to the government's position that alvarez would be the one that would deliver the suspect now if you can imagine two carloads of da agents coming from reno nevada photographic equipment and a range meeting at a certain place agents in various areas of when the markets are survey all the economy and room when the deal is supposed to go down and that the only evidence whatsoever that placed alvarez at the economy and at the time of the deal was rivera true and you wanted to put in the motel room receipt wrong about it but here's what i want you to hear here's my question then you get to it as you explain to us how if you had been able to get that receipt in the evidence it would have changed the outcome of the the trial or comparison purposes we know it's pins it's properly a syndicated for four it used to compare handwriting and we know what's rivera's then we have the actual motel room receipt not just  rodrigues was the first name there i'm not sure what the first name is but the last name is rodriguez from that brings up the third document that i wanted to introduce and that's the alltel records where m page one eighteen or the statement to the to the agent that was assigned correct and what was the other thing you weren't allowed to put in well the out of the alltel record and that would be one that would be one twenty four the records and just his own was impossible to read but if you look at the document one twenty four the name on the alltel cell phone records was rodriguez it's right in the middle of this terrible copy how do we know that that record had anything to do with rivera with various cell phone it was rivera's cell phone records that i'd change from alltel during the middle of the trial i obtained these records on the last day of trial in fact maybe maybe evidence had concluded i can't recall well if that's true then you didn't give this to the judge in time my house a judge posed a low you're going to get this in the future i made a motion conclusion of the evidence or before the conclusion of the verdict i think it was before the conclusion of the evidence i think it was trying i was trying to get the judge to to rethink his ruling in regard to would tonight told him about woodson and i told  about the mine entitlement to have a jury compare the handwriting but at the time the judge made the original decision he didn't know anything about the health bill record i believe you not know not at that time but immediately afterwards and during the course of the trial i didn't know about it but whose job is it to get that it's not the judge's job to go out and get these records or you should have subpoenaed it and said rodriguez equals rodriguez i went i need a motion for discovery i was severely limited as to what the the government objected to everything i was a limited as to what i could ask him before trial when i got into trial all of this i need these requests during the course of trial as i found out about the cell phones about his cell phone and other information i wanted to get his records i did get his records and it's very hard to do so unless you work through the government because i don't know who is and then yes i have one last question let's look at the evidence that you did lay before the judge you have the economy and swill and then you have the next few pages that are a statement and explain to us how somebody looking at these two documents would draw the conclusion that the same person wrote both they're both printed the sum of the letters that i that i listed down there and i and i send it fort n one eighteen show me the corresponding ones on the other statement that you think are written in the same manner well suffice it to say i think the jury is entitled look at this stuff that the judge is not entitled to pass upon that point not maybe that's right except if it looks as if these documents don't look like a anything close maybe it's harmless error on the other hand if they are close maybe it was not harmless so you say the r n g looked the same with but i'm not seeing that muscle well i had you know i when i was putting asked attempting to put this evidence on i had an overhead projector and i had things laid when you look at the fact that he wasn't controlled in the normal fashion when you look at the fact that the change in rules wasn't done are the change in location of the motel was not done under a controlled situation it wasn't monitored they gave him the ability to pull it off might seem farfetched and it certainly would seem farfetched in less time able to put some beef on the bone and the beef and then it garbles up everything are we always then in a position of having to go out and hire and or this huge a act question documents examiner could go through document and weigh them i think the ninth circuit his own words on october sixteenth when he confronted the informant who was going back to meet mr blanco to set up a two pound drug transaction mr markel wasn't at the residence mr alvarez was there he was wearing the get away with it because it would be better if you don't come around here anymore man goes further he says you follow us for your own benefit and the informants says well if you know there's a misunderstanding or something i will work with you guys in the future there was testimony at trial that the word in spanish which is highly j a l e e translates to work in english and that's how many drug traffickers when they talk about drugs they'll be talking about the hollinger or work you have to believe i guess that he not only was able to orchestrate this whole thing to deceive and change the hotel room in your list but then also have somebody call the hotel room or corroborate would be saying i mean it seems that telephone mr alvarez came up face to face in that the drug deal with him and it seems perhaps we didn't have that conversation a little bit less than a month later with mr alvarez threatening the informant saying you work for the marks i believe that the agents wrote the location and those are the two d h and signatures the very bottom line so your point is ok the the an alternative ground that you think the judge in fact used but didn't say the said there was a panel actually talking about the absence of extreme or unusual circumstances not present here we still don't see no reason why him rating comparisons cannot be made by the jury and conclusions drawn from them either in the presence or the absence of the expert opinion when you look at the wilson case they're talking about some other invoices where there was testimony one from a hearing expert even though he said he couldn't make a comparison but you had evidence from a witness who sa mr rivera had taken out a cell phone and the name of rodriguez when did that come to the crowd judge's attention and what and in what manner your honor i'd be speculating myself if i would be able to try it exactly tell you when you get it was sometime yes you can't quite make out the first name but almost looks like an alpha ra or alvarez rodrigues so i think cut both ways if you're going to claim that because the name a common mexican name rodriguez is listed and then showing on the bottom of one thirteen in the top one fourteen the court talks about his own examination showed that unfair prejudice to government might arise by virtue of the fact that the handwriting is so similar he goes f saying i do not believe i'm going to college on the jury to speculate that one person wrote both documents and i just briefly mention only the audio tape that was suppressed dealing with the transaction that took place in the hotel room the defendant in his pleadings and as with the record nineteen asked the court to exclude is rather interesting about the tape itself because the first case the first translation of an eight we had had in english spoken on the tape and so i was relying upon that to prove that alvarez was on february twenty sixth the new translations took out all english phrases when i when i found out and this is in the record when i found out what occurred what apparently occurred is the interpreter down in los angeles received a call from the u s attorney's office telling her or telling interpreter the interpreter service that there was no english spoken between these two individuals then we got a new translation and with no english on the interpretation i was unable to get the name from the interpreter that they sent which was the new the inter the new interpreter not the old interpreter i didn't know the name of the old interpreter that i wanted to help me bolster my case and so that was another fly in the eye and i think that just changing had to deal with and i think that kind of pushed him forwards excluding the whole nightmare by just kicking kicking the tape out unfairly prejudicial to put forward your theory of the case it might be unfairly prejudicial to i can't think of how it would be he didn't analyze it that way what the judge clearly did wh he said my own examination prevents you from putting this in what because of me can't judge do that when when a judge looks at it even in a criminal cases there's no reasonable jury could find any similarity between this handwriting this is going to be a waste of time and a sideshow and on that ground and that ground alone we're going to we're going to not let you go down that path i just felt it was very simple or well i looked at it i don't think it's similar to all well you have to take discreet you know and handwriting and tuck you have to take discrete portions of it you have to take the signs of it and we were prepared to do that on the overhead and let the jury look at the size of the writing the fact that it was printing the major letters the way the curves went in the letters i look at that i don't i don't know all those points none of that rings true to me in looking at the actual documents you know doesn't that take away my right to a jury trial to the original money that was used in the transaction that occurred a couple of weeks before he had no agenda for cation he had no weight he had nothing on him when he was arrested that would allow him to wriggle room anywhere so that goes towards our our position there were a number of circumstantial things that went towards our position including this alltel record it is a coincidence that he mr rivera uses the name rodriguez a fake name for a drink it's on the shelf low and it just happens to be the same fake name used on the motel registration card you can't even tell us what do you even bring that car at the time that that you are offering this hotel registration receipt you didn't have that evidence to show the rodriguez equals rodriguez point you are relying only on handwriting i squeezed that out of the government probably at the very last day of trial over there kicking and screaming your honor we had i had trouble with mr denny from probably when we were building born he had trouble but now we had trouble in the trial and all i wanted was an even shake now it's very important and it's in cases like this to get all the facts in front of the jury and i think we had some deep and it was prevented from getting the jury there's one other issue here if i could oh i'm now but i have the linux issue and i also have this idea that he is certainly a