the morning your honor stated britain for mr otero in denying a motion for continuance judge kaplan refers to ben franklin's home by saying for want of a nail i would look at this little bit differently for want of a week a trial was lost he did to mr otero was he informed about the statements made me another person as the pseudo before that moment at the very beginning of discovery the government it turned the identification at the request of other gang members the identification from a to detective just before trial the government turned over thirty five hundred material but disclosed that mr billing subsequent to that identification subsequent to that i've been puzzled by that i thought the statements that were made to these friends of his billings were made up a few i think that was a couple of days later his statement to the police it's my understanding that the statements to friends continued not only after the funeral but i believe based on thirty five hundred that there was more to it than that there were other statements that other people had repeated that they heard from but isn't all all of these things they're all hearsay yes they are the only the only way any of this generates anything useful for mr otero is if mr billings is available to test not necessarily on or as i argued in my brief i believe that mr billing statements that lewis shot him would have been admissible under way the seven residual so i do believe that the statements would have qualified to court never ruled on that issue did not come up the what happened and again this is what i call the perfect storm when the opportunity to cross examine detective gurgly to bring out the statements that were known at the time came up defense counsel did not use what defense counsel knew about m application you would be able to find out what defense counsel thought she was doing or not doing and why and you'd be able to find out from judge kaplan what he's ruling would have and which would go to the prejudice from  under under those that are you saying we can decide as a matter of law that the hearsay exception would apply i'm not saying that the court needs to make that particular determination you can look at what defense counsel did not do on the face of the record that is it's fine to say and let's assume for the sake of the argument we would think well that she hasn't been forbidden and do that by the judge then and the defense counsel should have the point and that's sub standard representation not to press the point but it's only prejudicial a point when if she says judge you never ruled on this in limon a motion i think i have a right to ask the question i'm going to ask the question then the judge would have ruled one way or the other on that and the ruling might have been and it might well be a ruling that would be affirmed here now the or not they don't have the kind of these things are the kind of reliability that would go nato seven rather extreme circumstance exception i would beg to differ your honor i do believe that if you look at the factors under eight zero seven clearly the statement as laid out in the record which i think the best example a comes in the pretrial conference on july seventh would have come in under eight or seven i do believe that that would be clearly admissible you should statements from a person who has told the police that he was making this accusation because he was instructed to do so by a gang bosses that might go to the weight that the jury would give the statement the subsequent recantation but if you look at the statement itself under the factors of eight zero seven it would satisfy all four it's trustworthy in that mr billings would certainly know who shot him he was facing the person well wait a bit but if the statement comes from somebody who's a convicted perjurer with the psychosis that leads him to th put out this rumor to the police and on the street and if you can buy that to the police he might still want to say that to people on the street but you're right but that's not what happened what we have here is him telling two disparate versions one to the police and one to his cohorts and i think that in looking at rule eight zero seven in the interest of justice getting this information in front of the jury where you have someone who is on trial for murder and you have evidence that on its face names another person from someone who would have reason to know who shot him who explains why he's familiar with that person there is no other evidence on this issue for the defense to use and it would in looking at the  factor serve the purpose of the rules you would have something relevant for the jury to look at and you have a jury who had some questions about who the shooter was to begin with who had witnesses cooperating witnesses who claim that their gun doesn't work and put themselves in different places th contradict the one independent eyewitness where he doesn't have to be the shooter no he doesn't but if you look at the jury may well have had doubts they may well have convicted him notwithstanding having reasonable doubt or even an affirmative believe that he  wasn't the shooter no they believed he was part of the mission they they could have but if you look at the the government's proof if you believe the witness it's an all right doesn't have to be it's not an all or nothing but all we can say i know what these guys are doing they're trying to say it was him that fired the shot so as to because that's beneficial to them to say that that doesn't mean the jury has a reason to disbelieve necessarily that mr tara was there no one pick and that's the calculus going on in the jury's mind then the evidence of mr billings identification becomes even more important in a case like this because they may say well we're not sure if these witnesses are telling the truth about mr oter shooting but maybe he was there but now we have lewis and motives to exculpate lewis we have lewis as the shooter now we're not so sure because these witnesses are talking about louis being there they can't be believed on anything and that could be the calculus that the jury goes through and that's why i believe that the evidence would have been admissible under eight zero seven the failure to cross examine on it was ineffective assistance and the failure to give the defense at defense would have been able to call any of these witnesses to testify under rule eight zero seven i wouldn't say it is what i believe i think that well everybody does a reasonable argues of the argument would be that having a not that the government improperly induced the defense to forego a line of investigation but the information that was imparted to the defense when mr billing statement was first disclosed was that he has subsequently recanted and as as i understand it the defense did attempt to investigate i couldn't speculate as to that i'm not sure mr billings would have told the defense he was on they were unable to locate everybody agree that he was on a bill at right i don't i don't know what efforts were made at the time but that's not that's not please the court my name is karen carlock and in assisting united states attorney in the southern district of new york to try this case below i deny your honor do you know why the government objected to a continuance the government objected to a continuance because the information had been well known to the defense for over a year prior to trial and in fact i would point the court respectfully to that conference mentioned by my adversary in the appendix at one thirty point three one  defense counsel admits that she had done nothing to locate mr billings and only upon viewing the forty five how to material did she know that she sought to serve him with a subpoena at that point to the judge kaplan was well within his have billings interviewed in the hospital by the detective and he says it was luis correll and then there's these incidents apparently at the funeral of  e murder victim where he tells other people louise was the shooter then there is also a point at which he recanted not not on the record on are what i do have in the record at a one nineteen to twenty eight is the excerpt from the government's june eighteenth two thousand and thirteen discovery letter and which the government sets forth sort of the totality of what was known at that point in time of the surviving victims identification of lewis career as the shooter so in that excerpt the government states please be advised at the time carroll was killed another veteran was shot while the victim was in the hospital the victim told police officers lewis korea had been the person who shot at the victim and john carroll the victim explained that the victim had grown up in the us korat new career well knew  and then later recants does that make a difference the question is whether the funeral said it was a curse before or after the recantation because it would seem to me that the senate has a better argument if billings is flip flopping on this that if you only flips once if he tells a story during the period in the immediate aftermath and then later a chance that story then i'm not sure that the statements to his friends are any different than the initial statement to the police might be different if the sequence was the over way i understand the point i don't i cannot speak to confirm what exactly the or so could be construed by continuing to tell the story after the fact that might put a different spin on questions of reliability and so forth and i'm just wondering whether there is not a need for more factual development about what the alleged value of these statements might be well i don't think there is need for any factual development or for the factual element to affirm judge kaplan's denial of the requested continuance based on defense counsel's representation that she had done nothing to look into that information regardless of whether that be information about whether know when she decided billings is going to be useless to me because he if he's already sold himself back to the cops and is going to say yeah i said that but i didn't mean it  wasn't for it it looks a little different if you can then come back and say to him oh right well if you got religion and decide it wasn't true you still telling that story to a lot of other people and once you got yourself off the hook with the outlining to you that is did not highlight something about the sequence of the statements that would make statements to his friends something other than yet another iteration of the original story which he has subsequently t about the time and made it into the record yes your honor i think that's a fair characterization of it with respect to the additional points of course the evidence is more than sufficient to support the jury's verdict here there are numerous cooperate identified the shooter as the individual with light skin and that he was carrying a bag which matched with descriptions of otero on that evening and i believe there was there was also surveillance video and pictures otero also got out several nights prior to this to perpetrate a retaliatory shooting and was unable to find members of his rival drug crew so there was there was quite a bit of evidence that he did more but she also describes that one of the two the shooter puts the gun in the other person's bag which is contradicted by what mr moore malayo says which is that everybody ran he in so very all right in one direction  which would mean if you believe part of his testimony that so very oh it was the shoes that he was a hero to his gun and left he went in another direction and they have a whole theory of where he puts the gun and who in the rooftop and all so on so if you look at his henderson's testimony she