and the argument on appeal in a nutshell is that for evidence yury rulings in combination produced an unfair trial a skewed factual record a distorted picture of what happened an unfair trial rather than try to talk about all of those issues and my time i want to focus on a couple of them and of course i'll be happy to enter court questions about the others the first issue that i'd like to talk about is the question of immunity for g g r if you do indeed you have a lot of cases that say that this is it and it will be the very unusual case where it has to be done this is that case and that's why i wanted to address the argument ok orally this interested in the gap between santiago proffer in the evidence the government actually admitted at trial so i don't know who's going to cover that but i will want to hear something about that very regular that i'll turn to the next  perelli and brown who were the heavies in this thing the government didn't call g g it immunize john john gave somewhat confusing and perplexing testimony but but the central to the government's theory in this case was that g g that the money came in and gigi said that my fingerprints are on that money you can lock me up and take my rest up i mean he was adamant that he had nothing to do with this and that was the was the critical testimony for mr davis without that testimony he had no witness available to rebut that this team theory that the government had and so that's that's what judge rogan that's why the evidence was so critical and judge power the reason this is the one case where you government abuses its it and its community authority and and distorts the fact finding process in doing so that could be a due process violation so it's not a question of telling the government you must grant immunity it's a question of saying there is if you process us versus strong it's five thirty eight f third eleven forty seven again it's cited in the brief but not emphasized as i wish it had been i wrote the brief so i can criticize my own work and what strawbs says is if you've got a case where the government immunizes a witness and refuses to him and i as the witness who has directly contradictory testimony that that is the due process violation and that's what happened to john romita testified the one thing w which we generally supported the government's theory g g would be to have directly contradictory testimony i didn't pass the money i didn't talk to john reed oh about beating our days are go and the government wouldn't immunizing and so the jury never  a big part of the government's case i would say even the heart of the government's case was these these so called coconspirator calls involving car perelli brown and john repeat oh typically it would be two of them on each call that there was a series conspiracy and they couldn't so if the calls in come in against him it there clearly there was a conspiracy clearly there was a conspiracy and some of those calls were in furtherance of it no no dispute about stand ke you link to davis you know what i'm concerned about is as they say is what the government said in the sense jago crawford versus what review doe said on the witness stand well and and what the government says in the study i go proffer is enough to get establish by preponderance of the evidence that mr davis was part of this conspiracy and i'd be happy to tick through the items of evidence that the government relies on but we do that in the reply brief point by point the sell side of that now in other words just let me get this straight on pages nineteen to twenty of the response brief where the government sets forth evidence outside the recordings showing at the conspiracy existed in the davis was part of it my understanding even if you are was that some of that evidence isn't thank us and can be read in a different way but what i've been trying to fit your around is where is the abuse distraction and finding this evidence sufficient to allow the admission of the statements and you know where specifically was the district court's error well you know the evidence your honor i think has to be looked at we can look at it item by item and then we can look at it collectively but ultimately it has to add up by a preponderance of the evidence to a showing that mr davis was involved in this conspiracy and at pages six and following of the reply for if we go through the government's purported independent evidence point by point and show not just that it was ambiguous but that it really had no probative force at all let me take the sell side of it as an example to government how did this highly they put on an expert at trial this was a big part of their showing involving mr davis and the point was to show that on a particular night believe in july of two thousand and eleven or twelve that mr davis was at g g rubio's restaurant on the night that money was passed to g g it would be well what the cell site evidence showed is that mr davis cell phone used cell site towers that were six or seven towers away from the rest so that the and the emmett direct the expert also testified on cross that ninety percent of the time a cell phone will use the closest tower avail so what does that evidence add up to it doesn't add up to a showing that mr davis was at g g would be those restaurant quite the opposite it's almost an alibi defense it shows that he was at most several miles away six or seven cell site hours away that several miles on the night in question so that has absolutely no probative force and in fact if anything it tends to  but this suggests just by the fact of phone calls that that somehow shows that mr davis was involved in a conspiracy with give you a veto to have somebody has legs broken doesn't make any sense at all there's no probative force there at all  simply the evidence at trial particularly the independent evidence and that has to be said didn't connect mr davis to this conspiracy it did so in that sense to talent and it was quite different than what was represented in the ultimately it puts that witnesses say on the witness stand that counts when the judge has to make the final determination whether there is sufficient evidence to tie mr davis to the conspiracy and there was not this kind of what coined did the district judge really come to grips in the trial with those gaps between the son thiago prof or in the actual testimony offered well there were a series of objections there was the pretrial motion that produced the santiago proffer but then  repeatedly as the as the as the tapes began to come in that the defense renewed this motion and the judge each time overruled it essentially found sufficient evidence to support the like but is never asked to identify he was never asked to identify mickey davis sitting in court as the mc he saw it it's a bizarre gap in the evidence and i would suggest a telling my light is on i want to make side in cases in support of the idea that they're entitled to assume that a witness will testify truthfully what in the record put the government on no judge asked the lawyers to all get together and talk about it which they apparently did then mr durcan comes back to the podium and page fifteen zero eight of the trial transcript and says if called as a witness the lawyer for john or vito would say that there are he and so the only question is whether there was substantial evidence in the trial transcript that the defendant is that mickey and although they pick out individual pieces of evidence to criticize in their brief and in the question is whether the course of conduct and that evidence taken together is sufficient to prove by a preponderance of the evidence the defendant participated in a conspiracy and it is there is  that the government never asked any of its witnesses whether davis was the mickey behind the plan to break our g s my sweig the government not ask to have any of it witnesses i mean it seems instead it seems instead that the government used hearsay to allow the jury to make the connection the government did correct the government did not ask john review go to identify davis in court why not i do not know the record does not reflect why the government made that decision i can't speak to that again i can't speak to that the government the record does not reflect the decision makers surely given the prosecutor's injection of davis name as he's paraphrasing through the questioning for purposes of recordings in question make very clear that the defendant is the mickey in question he had already personally threatened r j serco on a number of occasions including once personally in his office was there more than the one there was the one interaction in his i believe that he may have invested additional money after january two thousand and thirteen and i'm not positive he did take a number of actions to reform and trying to financially turnaround that dealership in addition to dealership the defendant without permission without consultation vehicles from his lot moved them to a separate lot would fight peter to from zero so moved them when talking to anybody about it so he removed two cars in addition to taking a collectors car from marjorie circle and when he was confronted about these issues over the defendant claimed i'm trying to get my effing money's worth or something along those lines so there are a number of conversations not limited to the january two thousand conversation which artists are close office that indicate that the defendant was very angry he was willing to go to extraordinary means to collect his money and those  payment that the defendant was near that restaurant so he was not at the restaurant at the exact time that the down payment was delivered as his phone didn't have data at that moment but shortly after the down payment was alleged to have been delivered he was about head it was within a close to brady yes and the the reason that the six towers came out is that the government's expert at trial testified he was close to that restaurant it was consistent with the government's theory the defense cr examined him about it not being the closest tower and the expert testified yes he it appeared that he was moving away from the restaurant at the time in addition there is that the conversation on the recordings indicate that the defense i'm sorry here so you're trying to get it right and trying to just that we're trying to juggle the recordings themselves under this court case law can be used to they show the conspiracy and he can be but you need more correct and course of conduct between these individuals between the victim and and the defendant the cell phone records the historical cell site the discussion of who mickey was on those calls all of that coupled together they can't be considered  isolation and when they're taken together that shows by a preponderance of evidence and and just to be clear the standard is less than reasonable doubt and that although the defendant was not charged with conspiracy so the jury did not have to make a finding provided the following information about the conspiracy to be circle davis approached g g were veto seeking to hire someone to be circa that's the promise never delivered right the recording would say that on the night that the debt that down payment was made he saw the person he knew as mickey and he was close enough to overhear and he was told gracious about it relationship to occur dealership and none of that happened have never seen such a big they're rare but i've never seen such a big gap between a santiago proffer and witness and testimony a trial i can't speak to that grounder but what i can say is that the purpose of the santiago proper is to provisionally admit evidence that it's it's meant to be assessed at the end of the trial on the basis of the entire trial record and to have in this case the recorded conversations stricken if the trial test man's testimony a santiago proffer in this case however the defense even acknowledged they argued if the government does not call individual de john repeat oh then it cannot introduce any of these statements and the district court's pacifically address that it santiago proper it said no i don't agree with that i think that the evidence outside of this testimony of individual view would be sufficient there's a there's a specific line in the order about this it found that that the evidence as a whole even absent individual  would be sufficient to satisfy the government's  in a manner that was largely favorable into the government's case so i'm hard pressed to see the purpose of asking him about his prior statements to the f b i other than getting them before the jury how did it help the government's case to call his credibility into question at that point and if it was  to allow this how was it harmless the government put some very key connections before the jury with this questioning time to the hard dealership placing davis at the scene of the first payment for example your honor john or vetoes testimony in this case was very mixed there were critical admissions that the government anticipated to get from him including his participation in this conspiracy which  taken a look yes your honor and it's important because it puts that use of the prior inconsistent statements in great context so for example starting at page fourteen fifty four of the trial transcript the government asked john reed oh about a particular statement in a recording i'm sorry fourteen fifty six asked him about a particular statement in a recording where he says hopefully they will be playing baseball again soon and the government asked the witness well what does that mean what did you mean by this and what follows is a number of pages of back and forth questioning where john vito claims that he was talking about the cops he was talking about actual face all and so the government asked him are you serious are you actually talking about the cause he claims that he was the government asked then what are you talking about a series of beating here using a baseball bat to break someone someone's legs and he walks back on that admission he says i don't recall i know there's a number of statements back and forth about that the government then uses the prior inconsistent statement which is a statement that he had made to the f b i about the use of the god the term the words to mean breaking somebodies legs with a baseball bat so it's important to put this into context that john or vito is not just giving admissions that are favorable to the government's case he was a hostile witness and so the government isn't peaching particular parts of his testimony it doesn't need to be impeaching him and all short together as a witness given given that importance and the delicacy of this i found the very troubling that the district judge did not give the defense request a limiting instruction at that time prior inconsistent statements are being put in front of him the only reason they're being put in front of him is and in front of the jury is because of the inconsistency and yet the judge is reluctant to highlight that inconsistency to tell the jury about what the police the lawyers think is a critical difference between substantive evidence and mere impeachment i can understand that concerning our think it's a very standard  question of discretion on the district court are it is it is a standard teacher to give that instruction at the end of the case when nobody knows what you're talking about i'm sure and to be clear at that point those are inconsistent statements that impeachment had not been affected instead the government was providing the witness as was proper to do under rule six thirteen an opportunity to explain or deny those prior statements and the district court determined even though it was asked on a number of occasions so it had a number of occasions to speak to this that it was improper to basically have lashing like a inconsistent statement it did not want to highlight it and it was within its discretion to make that determination the jury was instructed at the end of the case  to pattern instruction three dowdle three that it should consider a witness's you know prior inconsistent statements for the purposes of assessing a witness is believability that was proper it allowed the jury to put this into context when i was considering th what i want to address while we're on the question of john reveals testimony judge rove nurse question to mr klein about what what the government was on notice of in terms of the inconsistency is in his testimony and i think we need to correct something in the record which is that there were two occasions on which this was discussed with the district court the first was on one morning mr salerno who represented john and reve ito came into court and said there are a number of things that we disagree with in the f b i reports in terms of the documentation of mr reredos interview with the f b i the district court said at that time you know this is not the time for us to discuss this this is an issue of munity right now were discussed at a later time he came back i think it was the following day and both parties government and defense counsel and john privy to his attorney stepped into the hallway they had a conversation about these precise and consistencies they came back on the record and they agreed that the only example of an inconsistency that mr slater now could come up with dealt with the documentation of the prior statements about karr drug dealing which was not an issue in the case of mr reviewed it was not asked about that drug dealing and the district court concluded from that this is this is not an issue right the government is acting in good faith and calling this witness would perjure himself if he called to testify he had made prior statements to the f b i that completely denied any involvement in the conspiracy to night and knowledge of the defendant's plan to par marjorie serco and the government has the utmost discretion subject to due process violation to deny immunity to a witness that in any situation including when it's thinks that it's lying in this court noted recently in chapman that i had never found a due process violation in th context in this case certainly is not that unusual case that justify such a finding if there are no further questions in the panel i would just one thing sure what are we to make of the testimony so the message to be delivered with the expected beating words don't mess with my sister yes your honor the government takes out of para for how it argued this at trial was that it was a coded message serpico would know what who it was from and what it meant that it wasn't you know the defendant wasn't going to say hey you owe me three hundred thousand dollars this is my nicky davis paying my money that's not how it works and so he was trying to deliver a coded message through a number of intermediaries in order to have r j circle understand in the context who was sending that message because if you if there are no further questions i'd ask the panel  from from the beginning you're not going to raise your voice i don't know mr golden word the the problem with this case is that every time the court got to exercise its discretion it exercised it against us and there's a cumulative effect here we did not get a fair trial this case is nothing but hearsay you asked some very well pointed questions with respect to why doesn't doesn't janitor veto identify mickey davis i suspect it's because either he wouldn't or he couldn't and it doesn't matter for our purposes with respect to every time we turned around the government got the better of the brain we did we didn't get the missing witness instruction you know say bob well you know there's a million cases for immunity i get it i understand that but due process is you can't distort the truth finding process and that's what happened here they put somebody on the witness stand and i disagree with the government when they say the only we didn't agree that there was only one example of what was wrong with with mr salerno was talking about i just used one example we didn't get to have a hearing on this i asked for that earlier if my remember is correct when when when mr rhythm when mr salerno showed up for the several major issues and there is no doubt if there are any fair reading of this transcript that they were putting that impeachment evidence in quotes in front of this jury in order to elicit the truth of the information and then they argued it later in rebuttal argument and that's what happened here it was it was one piece of hearsay on top of another piece of hearsay  picked they never addressed the issue they they get the hearsay and that somehow he showed up in a in a rustic or orange colored dodge charger and we put in evidence that mickey davis didn't own a dodge charger that was rustic it was purple and we put that evidence in we put in evidence of the cell tower they made a big deal out of the cell tower and you're correct it's seven miles is what the distance is on the cell tower we put in an alternate explanation we called mickey davis stepfather who testified that it was mickey davis's regular practice to play golf golf was a myth the whole issue of you know smearing him with the fronds owens deal around us they were all golfing buddies and there was plenty of evidence that they got off of a country club north and we put in we his father testified that it was his routine practice when he went and played golf and we put in evidence that he played golf that day we had a receipt that showed he had played golf the day of the sour the tells the cell tower and that travel pattern that was on the cell site was totally consistent with mr davis going from the country club to his father's house to the to back to i fifty five which would explain his being near the restaurant at the particular time in question that's that's really good evidence when your defense is reasonable doubt they never want connected the mickey to mickey davis and it's not like we the disc aim out of the blue we said this was never going to happen and it never did happen and i mean why couldn't we have at least got if we if you if you don't want to change the law and government immunity which i respectfully submit has been abused till the nth degree and it might do the government well if you took a case like this and said you know that's right you don't have the review or we don't we can't force you to do anything but we can say that you then get a missing witness instruction or that simply there is going to be a case where there's a due process violation where the truth finding process was so distorted that this is it and i think this is a good case for that you talked about a santiago proffers when i first started practicing law without admitting my upcoming seventieth birthday which i'm embarrassed to admit to but i'm in good company here i think with judge  becoming so perfunctory that it's it's laughable anymore you almost feel bad people did trial judges start looking at you like you have horns coming out of your head when you start complaining about the santiago proffer  because it's just accepted as a matter of course there's just such a little burden what difference does it make well it makes a huge difference in a case like that anything else i'm sorry is there anything else you'd like to tell us plenty but i i see the red light