morning may it please the court your honor norman travis for mr simpson and with the court's indulgence i'd like to begin by addressing the contents of the supplemental appendix which was filed last week not because i think the court should describe any particular importance to them but this is my only opportunity to address them i just saw them last week all of those probation reports of co defendants that were included there none of them contain your woods inconsistent statement and neither does the probation report from mr simpson that simply reflects that all of those reports were prepared after mr simpson's trial and they repeat reflect the account of the events that was in that trial mr holder's report was prepared prior to the trial prior to mr simpson's trial and it reflects you woods inconsistent statement that's all that can be inferred from that moreover the court should know that although these reports were given to the court they contain a damaging statement ascribed to mr simpson which the government has admitted in court in the district court was never made they say all of those reports and give you a paragraph it's usually paragraph fourteen that simpson said that although he used to smuggle narcotics into the united states he felt that it became too dangerous to make the career trips himself and that's in there and that was in simpson's report two of the objected to it and the government by mr ariel wrote a letter to judge johnson and it said the government advises that is aware of no evidence that the defendant told the government that although he used to smuggle narcotics into the united states he felt that it became too dangerous to make the career trips himself so not only should nat not color the court's view of mr simpson in this case but it should also to the extent the court may want to look at other things in those reports not let them color it either and that false statement in those reports came from somewhere and the probation officer didn't make it up him herself with several different probation officers and it surely didn't come from mr ariel because it was brought to his attention he corrected it i would submit your hon inference is that it came from an agent and there's reason to suspect that there may be a pattern of agent misconduct in this case with regard to mr simpson a pattern which may involve the brady in violation and that end in effect of assistance of counsel argument only if the government somehow maintains that though the you would inconsistent statement was disclosed if it wasn't disclosed and there's no evidence that it was sure it doesn't apply i'm abandoning it but if the government somehow gets up and says well we managed to disclose it to two it was disclosed well then sure it was ineffective not to use it but i think when i filed my original papers down below i didn't have the the the year with thirty five hundred material i was hoping to receive it to have it and i didn't have an i didn't know what was disclosed to the trial counts and what wasn't then i eventually got it saying it was disclosed and it wasn't disclosed it was no ineffectiveness even if even if counsel didn't try harder to get stuff there was no obligation to do it i mean i mean the government had an opportunity obligation to turn that over so i really do see that is out of the picture two trips and it also appears in the holder complaint and you kind of need the holder pre sentence investigation report as a rosetta stone to figure out that they're talking about your would but i don't think there's any dispute they are in there she she she wrote i mean the government the asians swore to a complaint that said that c w one that's you would provided the information that a man named sheldon holder met with c one and set up two drug smuggling checks for c w one from trinidad to the united states and then it describes the trips that it dovetails that matches the trips that year would made so not only is the government not disclosing that you would give this inconsistent statement they're using this ins consistence a man to prosecute another person for the same conduct which ear would testified simpson and their irreconcilable i mean obviously both men could be guilty of the conspiracy but of the facts that are being testified to are irreconcilable  and i think if i don't understand why the government filed that supplemental i don't think there's any dispute that this statement was made by a year later and i think they would really be judicially stopped from denying it having utilized it to prosecute holder so this was critical because the only witness at the trial who said and was in a position to know that simpson was supposedly a knowing participant in the conspiracy was year wood and the government went through the usual thing that they do with cooperators and she testified on direct that she had an agreement and that if she didn't tell the truth that agreement was going to be and these are her words demolished so she had late this is a person who ordinarily would not be found to be a tremendously credible testimony significantly and simpson's wife regina testified and if her testimony is to be believed and is accepted it negates the strongest corroboration which of the phone records in the car being present because witnesses yearwood and and regina simpson testifying in effect inconsistently and what you've got was one of the reasons why that testimony of regina simpson might well have been rejected was because of your weight you with was not impeached i mean we ship she was impeached as a drug user and somebody one out with a but was who had been who'd held guns for the bloods who had done all kinds of you know petty type stuff besides that including drug use and some minor drug sales but she was not impeached in any way as having lied she was presented as somebody who bad as she was and terrible  was in terms of kind of person she might not want to associate with nevertheless she had a very strong motive not to lie and wasn't lying and i think it would have made a jury difference to the jury both in the i mean the case depended upon her testimony and also the negation of regina simpson sure regina simpson was an interested witness and loved her husband all that but negating the inference that flowed from her testimony also depended on accepting moon and she was presented as somebody who wasn't lying at a tremendous motive not to lie i think it would be very different and smore that a reasonable possibility that the result would have been different had the jury heard that she had lied lied about the facts of the case you reserved a couple minutes  them simply to complete the record at the time of the filing in the case we didn't have the entirety of the record and that was part of the issue in terms of our submission we're actually waiting for boxes to arrive we have them now and we've been able to go through them and so in the course of our sorry yes we did have the holder p s r before the trial and i just wanna get to that because the issue i think the grab i'm on of the giglio that defense counsel is raising is actually set forth in the complaint and i say the indictment charging simpson and holder and others in a broader conspiracy at that point that that complaint is merged with the docket for mr simpson and it's publicly available for him so that information that complain itself is available to him for review eleven months prior to the trial the it would stretch the imagination to think that defense counsel for mr simpson wouldn't have reviewed that complaint in advance of trial it's a it's an actual courier trip carried out that he's actually indicted for which was the specific trip involving the complaint that was filed against holder yes only against holder became a record in simpson's case when the two cases were merged is that that's correct your honor and therefore you're you're you're saying we should draw the inference that counsel for simpson went back and reviewed the complaint that was had been filed previously against holder i certainly think that would have been an appropriate step for an attorney to do and any reasonable attorney who is  defending their client for his involvement in a particular courier trip on a particular date could have gone back and looked at that and what have you done that you didn't separately provide it is thirty five hundred anything i did not your we did not your honor i think as johnson called it i think it's a perceived inconsistency it is not a perfectly articulated in artfully drafted complaint but it is one that leaves open the possibility of multiple conspirators and in this case david simpson and sheldon holder played similar similar roles someone who someone who was defending simpson at the start of the case and went back as you said and looked at would have no no reason to suspect at the time that what he saw gave notice of any inconsistent statements by anybody but anything so in the context your honor just to be clear miss yearwood implicate both mr simpson and mr holder in the conspiracy prior to the date of the filing of that complaint that complaint is then filed in the complaint mr simpson is left out of the complaint there's a footnote in the claim of complaint i can director your honour's attentions to it in which it specifically says as is common and complaints that that page page two of the complaint as a footnote it says because the purpose of this complaint is to state only probable cause to arrest i have not described all the relevant facts and circumstances of which i am aware so in the complaint which is written for the purposes of charging sheldon holder there is a reference specifically to sheldon holder's involvement in the conspiracy it does not specifically mention david simpson's conspiracy involvement in the conspiracy however the proper reports which were disclosed to the defense counsel and reflect conversations that that the cooperate or michelle year would had prior to the filing of this complaint do implicate david simpson he is part and parcel of the conspiracy and plays brady material that the government has got the obligation to produce it and to avoid having the defense counsel fishing around trying to put to do together and i'm not suggesting your honor anything else other than that i'm saying it's because you're saying that he should've figured it all out even though it was not produced it i think a very similar statement to the statement  forth in that complaint is actually contained in the thirty five hundred material thirty five hundred and why eleven and specifically in a proffer with the united states that was memorialized by the homeland security agents in which simpson and holder are both implicated in the conspiracy their respective roles are articulated there is a line in which it says your would have done a five sheldon holder as the individual who facilitated and participated in drug smuggling operations including the one she was involved with and arrested for on september seventh two thousand and seven that's probably worth something this may have come from i suspect but the  describe it that seems to be the issue i understood your honor and i would submit that you know this is this wouldn't take much for someone to sort of look at this and understand ok this is the statement about the trip that my clients involved in i can look the effect that she didn't meet holder until she got to new york that is correct your honor that he was involved in that first trip but only on the ground in new york he subsequently though on the second trip traveled to trinidad coordinated the trip from trinidad as to the first trip or testimony in the simpson trial was completely irreconcilable with the proposition that a man named sheldon holder met with c w one and set up the first  i think that's i think that's fair that's accurate your honor but i do think that something is lost in translation obviously from the reports and to the to the actual statements of their use in other inconsistency here i mean testifying at this that she was interested that she was just they are for family reasons of vacation who knows what and was and was recruited there so you really have you know we have two different stories this woman is telling  with what defense counsel was given i don't see how defense counsel could have could have skewered her with the fact that she has two completely different memories of the first of the first trial well i would say that your honor was thoroughly impeached a trial both with respect to her substantive narrative of the events but also with respect to her prior criminal conduct and i would have been there all the impeach because otherwise  understand your honor but the problem and this ultimately i think gets to the point that your honor brought up earlier which was that everything she said was extraordinarily corroborated and also there was independent evidence of mr simpson's involvement in narcotics trafficking so miss is your miss yearwood proffered on december sixth to the government about mr simpson's involvement in the conspiracy twelve days later proffers on the summer six she says david simpson sheldon holder involved in a conspiracy to bring narcotics into the country through couriers at the airport david simpson is on december eighteenth arrested facilitating the bringing in of narcotics into the united states through another kirk courier wholly unrelated to miss your would miss in town now the narcotics and up they they end up being sham narcotics but that arrest she could not have possibly known that david simpson was going to be at the airport picking up another courier or that the government was going to be able to effect a controlled delivery and have him arrested and then ultimately you have you have david simpson's car the same car used in the two prior trips within this year would in the parking lot doing the exact same thing with ms santana as he did with michelle your would you also have him arrested with an i phone at the time a four hundred dollar i phone a brand new piece of technology in his pocket that i phone has a telephone number that was found in the show your words pocket at the time of her statement that says that mr holder was the mastermind or that's just that i think that i think they played similar leadership roles i don't think one was more significant than the other and i think that can be characterized by think significantly affected by the quantity of drugs attributed to simpson in the first trip that's a fair point your honor although again a stand my my point earlier which was it's entirely corroborated the car the same car which mrs this year would describes to a t before he was arrested is in the parking lot when miss yearwood comes in the phone contacts between miss yearwood and mr simpson that she couldn't have possibly have known about other than if she actually had the conversations with mr simpson they are there those records exist you see the records the phone records when the simpson sorry miss your would gets arrested the phone calls between david simpson and trinidad spike he calls trinidad seventy two times on the day she's arrested after she's picked up with one point seven nine kilograms of coke then moved back earlier to the earlier trip the august first trip same thing we have david simpson's car in the park in the parking lot the silver hatchback caught on tape in the parking lot we have phone calls between michelle yearwood and the i phone and we have records showing this year would coming into the united states on that date into the airport and then prior to that we have phone calls just like miss yearwood says between her and david simpson consistent with everything she said and so when you put all of that together and you put put that in context with his arrest december eighteenth that you could posture was and she was under arrest at this time she couldn't possibly come up with their conceived of how that would possibly happen he makes a statement to special agents at the time of his arrest and he says and this was the subject of the prior appeal and i think defense counsel or appellate counsel the prior appeal conceded this was a damning statement he says when he's asked by the agents whether he spoke to miss santana when she came in he said she asked me when i was going to get paid and i told her it would be a couple of days which was a clear admission on the part of the defendant he also stated to the agents after some time period during the interview that he wanted to cut a deal both of those statements i think were were highly uncalled the tory and when combined with all the other crime orating evidence certainly extremely compelling evidence of guilt thank you mr aereo has spoken as if it's an established undisputed fact that the i phone calls were made by mr simpson as opposed to somebody else using the phone and that the car's presence was reflected mr simpson's prisons as opposed to somebody else with you macintosh who his mr simpson's wife testified was given the car and given the phone to use so you can't again it goes back to the effect of the the inability of defense counsel through lack of the inconsistent statement to show that you would have been lying again ms the the wife might well have been accepted or if not accepted beyond the reasonable doubt except  ufficiently to raise a reasonable doubt now the the defense counsel at trial raised an argument that simpson had been set up and kind of argument often seems kind of farfetched but the government has said well there's no way that ms yearwood could have known advance that david caesar was whatever well lizzie or wood was in touch with people who were while she was out on girlfriend was urging her to cooperate well sheldon holder hadn't been arrested yet he hadn't been charged yet who she urged him to cooperate against the holder this was holder's girlfriend so holders and holder's girlfriend and michelle year was boyfriend who was down and trinidad whose name was nigel bell far who was in touch with her also and told her all there was another mutual on on your plane and that that  wasn't the rest of the got away another narcotics most of these people would have been in a position to inform her about a set up that was going to come on give or somebody to testify against in lieu of sheldon holder they may not have known that she when at the time of this it that she had already in culp incorporated children older look i'm not asking the court to accept this it's discussed in the brief too except that this that this is happened we don't know but it is not clear cut simpson was guilty i mean i just hate that there is there's so much in this in this and it's quite a mess quite a different kettle of fish that the jury would have been presented with had they heard that michelle you would have lied one way or the other thank you thank