sinclair was denied due process rights and ultimately denied his right to a fair trial the first argument that we've made is that the statements that mr sinclair made after he was arrested forty five and threatened by the police when he was arrested the police officers denied that it happened the objective facts are that there was a warrant that they were executing in new york city that it's in january they have seen somebody come to the window on at least two occasions so they know somebody is in the home the officer testifies that knowing that the warrant design a triple homicide that they knock announce kick in the door and enter without this was before the jury honor that's just incredible under the circumstances of this case and you know it made me think that we're not a fact finding body as you well appreciate when appellate court and if a credibility determined unless a credibility determination just leaps off the correct but unless there's some opportunity to see these officers to weigh the circumstances of how are we going to cope with this it's unfortunate that we don't videotape hearings so that the court can see them at this time and i understand what the rule has been and they're executing a warrant they don't go in without their guns drawn that just doesn't happen and that they don't go around looking for other defendants that they think may be in the apartment without ever pulling a weapon your honor that's that lea the page just being present why would they lie about that though it doesn't hurt their case if they break in under the circumstances are going to try i can't tell you and i wish that there had been a videotape even if you assume they did with the relief i followed you have to look at the individual facts in this case what we have as an individual he doesn't have much relationship to the criminal justice system he's only been arrested one time in his life before this secondly reports there's one report that suggests that he's a perfectly able to understand his rights to waive them voluntarily that he has the capacity to do that even though he's he's mentally impaired the government reports the defendant's report says that with the help of counsel he can participate in the trial process the government's report says at the time of this hearing he understands what his rights are he's now been incarcerated for over a year he's been living in a federal prison down in phoenix in court numerous times and we've had at least four meetings by this point with the u s attorney in the investigators so the knowledge that he has at that  point versus the knowledge that he has in january twenty third of two thousand and three is completely different got to stephany i q the reports indicate that he really needs that a third grade level he's an eight year old that's where he's reading in and then he doesn't get taken in front of a magistrate he's held for five days now why did they hold him for five days i don't now is it because they want to have him in isolation i don't know that i don't know if it's to try to exterminate him i don't know if it's to wait for the officers to come from phoenix so that they can interrogate him which is what actually happens in the case i don't know if he has bumps and bruises and they don't want to sit to t show but he doesn't go in front of a magistrate for five days that's another factor the different police department even the got the statements from him yes the statements are done by an officer from the officer back local arizona police department in tempe and there's the agent with them but your honor once he's been intimidated and threatened once he's been up for five days without seeing a judge a man with a seventy i q in the courts we treat people with low mental capacities differently we don't execute people that have i q's of seventy or less he reads like an eight year old all of these factors should go into suppressing his statements additionally i understand that this court is held and by that we don't look slowly at that you're you know you have a heck of a good argument for a trial court but again the district court looked at all these things and made a negative credibility finding says i don't believe any of this stuff happened because he didn't report anybody in the forty seventh just didn't report this  seventh priest think there's no medical reports that substantiate this he didn't tell bags about it when he went to arizona he says i credit the officers to say yes somebody wrestle him to the ground there's no doubt about that so you've got a negative credibility finding with respect your client's claims and that's why i asked the court to look at these banks and find well we still have a very high threshold we just can't examine the facts we we have to apply our standard of review with you know i understand that your uncle sinclair had prior experience with the justice system he says the five you've been arrested four and a half years earlier was read his miranda rights and waive them at that time  second issue that this court should reverse the this conviction and return it for a new trial is that the government breached its agreement there was a free talk that was entered into and i started on behalf of mr sinclair mr singh and i read it so i mean he signed it but the government didn't play fair we had a free talk agreement and the purpose of the free talk agreement was to allow the government to evaluate what his testimony would be in what he could give to them and whether or not he was being honest and whether or not the information is going to be of any use and what's the showing that the government  the fact that they've had four meetings with us they made promises to me over and over again as to what the what they were going to do but wasn't at all contingent on the government's determination that he was telling the truth speaking without guile and holding nothing back and then the government concluded he was not telling the truth if the government knew that they hadn't and i believe they had an obligation to tell me why they didn't think he was telling the truth you let me give you my my debate is that the purpose of that agreement was for a three talk one talk if you look at the language you look at the heading it's a talk we didn't we actually cutey agreement each time we met we met four times i understand that the second one was they came back to me and said we want to clarify a few issues here if you were convinced that you had a one for obligation period determines whether or not i was ineffective burnett but what happens in this case is we have the first meeting he explains to them all the facts they come back and ask for a second when we have the second meeting with your consent with consent there is then a fourth superseding indictment i'm now concerned so i started having conversations about what you guys do in what do you know what's our deal we need to talk to him some more we need to agreement talks about a free talk it doesn't talk about multiple talks but i mean that ordinary understanding that is we're going to get together and talk this through until we come to a conclusion i mean i just i have participated in the use of these things you rarely was it just one time a guy lays it out the government goes back and says what about this what about that i mean it's a continuing kind of a discussion it generally is and i would agree with you that but in this case it was four times i've done this for twenty years to it's rare to have four separate discussions but where i think the government actually i figured out after three the guy was lying or telling the truth i thought he was telling the truth i still think it was telling the truth and if you in the government never told me why they felt he was lying i never knew who the witness what wasn't until trial that i now speculate that that they had stone who said who came in it was their key witness that that was what they were role lying apart in the contract  three separate motions she didn't i don't three the first one tonight prejudiced i was asking for a hearing never had a chance to have a hearing i never got a chance to testify about the oral conversations that i had with counsel and what they told me and i think that became important and i think when the government gets to this point where they've had four hearings some who are you i'm sorry what's your name and me mr maynard is there anything you want to believe that we were i was asking for he said you got anything else no i rely on the papers i mean i know your name but i just said i understand ok i mean when a court says you got any else if you want to say until after he did not receive the cooperation plea agreement that he hoped to receive both of the psychology of them and this defendant agreed that the defendant understo only his right to remain silent and that he had a rational and factual understanding of the criminal charges those can be those written reports can be found at the government as the are the very beginning which is thirteen fourteen and twenty two twenty one the district court also specifically found that this defendant had prior experience with the criminal justice system time and when he was arrested again in two thousand and three in new york he chose to act again as if you knew nothing about what was going on and we know that that was his choice because he revealed that honor however what i like i would like to bring to the court's attention is that the death zone didn't never objected the trial court level and so therefore the government had never had an opportunity to make a record at the zation application form was given to defense counsel as part of discovery and although there is no record that that came to him as part of discovery his reference to the small numbers on the right hand corner of the application is indication of the government's stamp it was like two thousand one hundred five where do you think defendant got that information the government gave it to him whether or not the known whether or not the government knew that was a lie but it didn't but again the jury had we don't have a foundation for brady giglio or anything how can you talk so every year i know the only issue was did the government saying that it wasn't the matter but not what the government was trying to do it's quite proper and redirect for the government to clear up any issues that have been muddied by just saying that's not true i'm close but not yet that's the heat of battle kind of thing once th court the jury did find that the defendant was guilty of all of the expenses so by implication he must have had that role if he was the one that we did get documents from the government but the government never told us that he was lying what the evidence shows in this case is that i asked mr stone while i was on the stand on the stand when you were being prepped by the government did you tell them that you had lied in your document and his answer was yes that's what the evidence is when they came up to rehabilitate and they never they've never denied that they knew so for the government to sit there and say now we didn't know a little disingenuous but what's the damage i mean you handle it very nicely and beat the government up with a pretty badly and the witness so how does it result in an unfair trial and they put in the reply the questions that were asked were was the only thing that you lied in this document a valve was your selling or use of marijuana in fact there were at least three other areas that he had lied about the government in other words got him to commit perjury to try to rehabilitate this way did you ever it's one thing now these witnesses are slippery and vast and so he says he told the government he lied but did you ever lay a foundation and go back to find out whether the government agreed with that or not i mean it's almost always the government's going to say you never told a stack i mean that it just be spirals down  all you got is his statement that he told the government you never got a government admission that they knew it that's right i don't think i would have expected the government to have gotten up and say that's not true you really didn't tell us now did you they never did that no they just examination i wish that i hadn't done it but i wasn't a liar i may have been asked and and the government's clearly the last question they wanted to leave the jury with the impression that i was a liar and they wanted to leave that jury with the impression that i had overstepped my bounds in the cross examination of this witness on those naturalization applications because i got out what you wanted to get beat up the government with the form of my guy got convicted if i got what i wanted to get he would have done convicted my client always cooperated with the government and always maintained that he was involved in a marijuana selling operation has always denied that he was involved or was the shooter in this murder this was the only witness who puts a gun in my client's hand and who s appears the one who killed two of these individuals writers even when they arrest him they don't find a gun and if so how many drug dealers do you rast and they don't find a gun in the apartment that he's living and they didn't find one here what it's done get in return for his help to the go he got the cooperation of the government and i don't know at this point what he got i suggested a court again i don't know but i actually didn't get