issue as the government has indicated in its letter to the court just this last friday on december second it's not open question as to whether the confrontation clause requires the government to make the custodian of business records available for cross examination that was in the government's letter to the court just this last friday respect i would suggest to the court is actually a very good vehicle at least from the defense standpoint for requiring that the agency in this case there was a stack of documents more than a foot high many of the documents could not have been authenticated by the individual who actually authenticated the documents i mean like let's take a simple case like you french and some of the records were in french and the witness didn't speak hebrew and some of the records were in hebrew and yet very significantly a significant portion of the trial where that was the prosecutor putting  documents on overhead it overhead projector and the witness just reading them and i was left to try to base of the cross examine overhead projector because i was unable to cross examine the declarant to say well how are these records prepared and why are there records that are clearly not bank records they were translations prepared by the tartan of justice that were part of the authenticate authentication process why were there records that were partially in hebrew and partial in english that were just recently generated but yet the declaration says that they were that the documents were prepared at or near the time of production these were things that i was prevented from cross examining the declarant or the witness about because the government was permitted to ask the questions that it wanted to ask in terms of the documents but in terms of how the documents were prepared what was included what was not included the witness knew nothing about and so to to that extent the the think your honor was the bank it was the defendant's view that the declarations were perjurious because for example in terms of the israeli bank records  there was a prior declaration indicating that the israeli bank had turned over all the documents and as it turned out that that it was later the government's position that the israeli bank had not turned over all the documents i think you have that she's to make the same point took to some extent that we could on the other hand given the the amount of time that was devoted to the trial to reading these documents the fact that to some extent we were able to cross examine the witness about it he did know exactly how the records were prepared was actually just a i think a footnote in the jury's consideration i think it seriously affected the often take authentication issue of the documents and shouldn't have been permitted permitted additionally many of documents documents were turned over about twenty two days before the trial and that would not be enough time in order for the defendant to be able to to prepare any sort of meaningful cross although it was preserved during the course of the trial that would be the crawford issue we also directed based on hearsay because some of the documents while they could possibly be viewed as admissions of the defendant were other documents that just did not were not  perhaps omitted my my strongest argument out of the briefs the government's analysis and its contained in i think page nine of it's brief speaks of events that occurred after the five year period within which the statue of limitations would normally expire and actually all those occurrences are completely irrelevant the significant dates and i would submit to your honor and i did not put in this brief frankly on i just thought of it this morning but it perhaps that's one of my better arguments is that on september twenty fourth two thousand and two the government received all the records that had sought from luxembourg and all the documents that had sought from israel the initial request israel to produce documents but to not certify the documents until closer to the trial period thus as of september twenty fourth two thousand and two it attained all its documents i'm january twenty seventh two thousand and three that was the five year bankruptcy that was much later but count one related to the false statement that was presented on the bank of superstition that was filed on january twenty seventh one thousand nine hundred eighty eight the five year mark for special occasions would have been january twenty seventh two thousand and three to the extent that the government is in possession of all the documents it's seeking prior to the time of the five year mark the the maximum period of extension is six months to the extension that's not in possession of all its documents then the maximum extension is three years should this court find that the three year benchmark applies my argument falls apart but to the extent that the court finds that the six month extension applies th my response that your honor is that it would violate the separation of powers doctrine in the constitution because it's the government then rather than the legislature or the court that the term is the applicable statutes limitations the statute says that it's either six months or it's three of the foreign power but also based on the opinion of the government because in this case it was the united states government that said please do for action on the certification until we're closer to the trial period and so the foreign government the government of israel complied with  that was the reason that was placed in the in the letter are i know and certainly the documents could have been produced oftentimes documents are produced to both civil and criminal cases and then and then the certification comes later but here the government specifically asked the government of israel to withhold the certification of the documents until some latter period and by doing that it controlled as to whether the six month time period would apply or the three month time period i'm sorry the the three year time period apply it wasn't the district court judge king who made the decision it wasn't congress it was the government by specifically making that request if the court were to go by the government's argument it has made the decision as to whether the statue and patient should be extended by six months or the special impatience should be extended by three years is that within the contemplation of the statute that the government is going to request these and not when they're needed and  i think perhaps witness interviews but the certification and so the distinction that the defense would draw the the cross a felony here is that final action in the shell case would have required certification and here the defendant's argument is that final action is when the government of israel complies with whatever requests the government the united states has made i c and the request was to produce the documents the government of israel produced the documents and that produced the documents before january twenty seventh two thousand and three so to the extent that the government of israel complied with the government of the united states request before january twenty seventh two thousand and three there was final action  would respectfully disagree based on the on the the united states government's request that the to the extent the documents were produced at least in the interim stage the final action was taken so for example if trial had been delayed by a year the government would still argue and it had only made the request a few weeks as it is a did here shortly before the trial than the final action would have been until later so it wasn't the government of israel that determine the final action it was the united states government and respectfully i we contend that that's a separation of powers issue the harm i mean if the government might take the position well defendant may be right but he was convicted of these other the harm because he's still convicted count number two and even under the guidelines i believe they would be calculated similarly the harm is that it gave the government a jumping board for calling the defendant in the case a liar the opening argument was filled with references to the defendant being a liar he's lying he lied to the court he lied to the trustee there seven instances in the opening statement it was a it was a very emotionally charged opening statement and then a closing statement there's a reference to him being a li defendant was a liar and that was only proper i believe because count one remained in the case after the defendant had filed pretrial motions to dismiss that  and the f b i agent knew that the witness was going to inject the issue of pornography into the trial and that declarations were very cleverly crafted we would contend that they specifically say that the witness  not use the word pornography during the six hours just a few days before his testimony the issue isn't whether he used the word pornography the issue is whether adult oriented business routes were discussed a his not testifying in the trial the court refused the proffered instruction on advice of counsel and the only reason he he didn't have the advice of counsel instruction was because he didn't testify the reason testify was because he didn't want the jury hear at his conviction and in the end the jury heard that he had this pursue the question further and i don't think i can answer that question i don't think properly the government can either i think they should have an evidentiary hearing and i should have been able to ask the attorney as to what was discussed and whether he had spoken to the f b i agent or the assisting   s attorney about the issue of adult oriented businesses and to that extent i don't think that this record had the type of information that she needed in order to make that type of evaluation and i know my time your structure i know you know what she did was after she didn't actually read the instruction we were getting to it she had published the instructions to the jury without disclosing it and as she turned the page and saw she told the jury i see that there's a mistake in this packet this this jury instruction does not apply to this case i don't i'm not positive i think she offered to me a curative instruction i'm not positive but my position was that we couldn't  please the court on arson on behalf of the united states let me begin with the issues pertaining to the foreign documents with respect to the statute of limitations is district court did not clearly air and finding that there was no final action in december of two thousand and three because that decision was made on two independent bases first the dispositive response as to all of the documents requested for the entire time period was not received until december the initial production which was made in september of two thousand and two only covered a portion of the period of time a question by the government the government subsequently made a further request to israel saying we haven't received documents for the entire time period we want you to comply with the documents for the entire time period the government of israel did indicate that it's fine it had complied but that turned out to be erroneous may december two thousand and three they discovered yes in fact you were correct we were wrong there are additional accounts for some reason did not provide those but we are providing them now so on that separate independent thesis completely apart from the certification the district court has not clearly erin finding that there was no final action until december of two thousand and three which you are going about the you're doing and run around the st powers argument was only raised in the reply brief so we didn't have a chance to brief it but they did but the district court first of all did not accept the interpretation of the and last request and this court should not either because the request and if you if you look for example at each peach and the m lat where there is a request for records starting at excerpts of record one ninety seven there is a brief description of the evidence sought to prosecut prosecutor request certify copies of bank records and the prosecutor request certified copies of entry and exit records of a particular witness then later in the am let request again there's a very detailed description of the records requested sort of five records and then there's a very detailed description of how exactly to go about the certification procedure what the m lacked did and this i understand from the office of international affairs is fairly standard language  is made an accommodation in the interests of cooperation which you know you have to recognize that these requests are made pursuant to a treaty but nonetheless we still have to work with another government another culture that may have a very different legal system than ours a very different banking system than ours we may not have an understanding of why the certification is important this court is even recognizing its case law recently and to george for example that attorney at the office of international affairs who handles the israel desk is that there is that's a problem of limited resources there is one attorney in the police department who  assigned to the execution of am lats because in israel the police are tasked with the execution of these requests and that person has limited resources and we have to work within the limited resources that we have and their method of will first of all your honor i would suggest that there the rule that should apply under thirty to ninety two shouldn't depend on which country is an issue and if you're in i think the question is whether in some fashion we there was an attempt here to manipulate the rules and what the government did was a very reasonable request we need these documents we need certified documents this court recognized in the shell but the reason final action takes place that certification is because the documents are worthless if they can't be admitted into evidence none the less we also recognize that the certification process takes a long time and while you are getting the documents certified please send them to us in any form so that we can continue our investigation that's what the government requested in this and lat and after receiving requests will sort of believe there was no there isn't there is nothing in the record that the defendant can point to where the government said don't certify to the contrary after receiving the uncertified documents in march of two thousand and three and again in september two thousand and three twice before the indictment the government requested certification didn't get it yet after that the enticement was returned in december finally the government was able to get the certification and again as the shell recognized sometimes there is a process of  negotiation and sort of continued discussion that goes on in obtaining the certification there is there a procedure beyond merely having an employee call some records and ship them over that has to be complied with under the laws of each country in order to be able to with a hypothetical let's say that the initial request and not contain a certification required and then the foreign government complies with the requirements not a final in those circumstances supplemental information don't go on to extend the statue and we agree that you have to look at what the proper interpretation of the original request is and the district court found correctly we would submit that in this case the end what did request certified documents what it also requested is that while you're going through the procedure of obtaining those documents please send us the answer to five documents so that we can get on with our investigation in a number of ways this is not a separation of powers problem because there was a lot of judicial oversight of this proceeding for example as as this court discussed in sort of a different context into george you know that the government has to make a motion to the district court supported by as it is to suggest that you know there's a reason to believe that these documents are in the foreign country they've been requested we have to you know provide the m one at there's a great deal of supporting evidence  district court is not just a rubber stamp it then makes a determination that there is a proper basis on which to suspend the statute of limitations and congress has made a determination that all of these concerns about delay and diligence and so on are properly taken into account in the statute by saying there's going to be an outer limit of three years and if the final action takes place before the stache otherwise would have run six months but that's the outer limit and so any sort of concern about manipulation or delay and so on is accounted for in the statute in essentially that's what this court said in the shall we don't really see that there is this a requirement  the government after diligently because congress has set a three year outside limit and that is sufficient so there's really nothing on this record to suggest in any way that the government attempted to manipulate this to its advantage if there was such evidence perhaps it should be delved into but there just isn't any evidence like that on this record what there is is evidence that in the world of you know international  relations you know we have to we can't merely stand on the fact that we have a treaty and you have to do this we also have to find ways to work with other countries just as you know other countries are then going to be making these same requests of us and you know the government is going to want some direction as to help us prioritize what you need today and what you know you don't necessarily need today if there was some suggestion that that had occurred for the purpose of delay really is limited to whether the court should have held an hearing there doesn't seem to be any dispute that there was no basis in the current record to suggest in any fashion that the prosecutor intentionally goaded the defense had to move in for a mistrial i think we need to begin by looking at the standard that the supreme court's that in oregon the kennedy because that is a very high bar for the defense to have to meet it rejected a standard of mere let's say prosecutorial overreaching instead set a very narrow window focused on the prosecutor's intent so the double jeopardy can only be invoked when the prosecutor's conduct was intended to provoke the defendant into moving for a mistrial and this court has pointed out for example in london mccoy that that narrow window doesn't even mean just because the defendant had no realistic choice it has to focus on the prosecutor's intent and whether the prosecutor intended basically to sabotage  trial there was absolutely no evidence before the district court that could possibly lead to that inference the defense's argument is we should have been allowed to engage in a fishing expedition to try to develop such evidence pornography and he never told us he took the deposition of somebody who had been in the in the pornography business with the defend it and at the hearing the prosecutor a lab or a did you know we didn't discuss it any we didn't discuss that business under any other terms we didn't discuss adult oriented businesses or anything else of that sort but that itself is not the issue because the issue is not even merely whether they discussed this the issue is whether the prosecutor intentionally knowingly elicited that testimony in order to provoke a mistrial so even if the witness were to say oh yeah we had some discussion about it and even if the prosecutor was negligent in not directing the witness with sufficient direction not to bring up this topic even if all that were true at most maybe you would have  trial again i would argue that even under cases like line and mccoy which has spanned and that you know even when the government's case was deteriorating that does not necessarily mean that the government intentionally provoked in this trial because there are downsides to the having to retry the case when you are not entirely certain that you witnesses are going to be coming back to the defense has already had a preview of your case and so on and so forth i think the issue we have to focus on there are a lot of ways that the that the defense could have done that it could have called up keith's and got a declaration from him the defense didn't do that and you know to the extent that the government had discussions with mr keats prior to receiving the defense's motion requesting that we not have contact with him at the declarations of the government submitted indicated that what mr ickes had said to us is you know i would sign a declaration saying no i didn't have in our office i can say that was a good thing when i can say that when i was trained many years ago and as far as i know in the current trainings lawyers are given direction in training about how to prepare a witness and to you know encourage the witness to focus on the questions and not addicks trainees information and you know that witnesses need to be directed as to those areas that are not proper that they can't raise and that's certainly a part of our office is training in the the understanding as far as i know of of lawyers in the hospice that you do need to work with your witness on what are the proper areas that can be discussed and what are areas that can't be raised and even if you're asked a question by the defense it may seem to call for something you know improper you know pause wait for an objection see you know you out something about that that wouldn't be enough we have to show an attempt to create a mistrial i mean that's what your argument is make this matter how bad it gets you just got to show them that there are some objective evidence that there that the seems to me that would be some evidence that there was some sort of deliberate attempt maybe to abort them as you know to abort the case and cause a mistrial and you know i think this court on other occasions has also looked at other remedies and you know for example if if a prosecutor improperly coaches a witness to try to inject improper testimony in order to prejudice the case then maybe there are appropriate sanctions that should be taken against that prosecutor but what we have to look at here is whether there's a double jeopardy problem and the double jeopardy property problem is limited to and there a situation which is which is just not found on these fa so but they're but they aren't to the job of a jeopardy issue quite yet they just say please give us another denture a hearing so the district court can determine for itself whether or not the facts of the case that there was an improper motive  cited a number of cases from other circuits because there doesn't seem to be a case from this circuit in exactly this koester i'm looking at that work in the kennedy situation but we've cited a number of cases in which the courts have all agreed you know the court has discretion to determine whether to hold an evidentiary hearing and that depends on whether there is some genuine issue to be explored and here there was just no basis to believe that there was a genuine issue because everything about the prosecutor's conduct that the court has been able to observe suggests is that there was no intentional provocation and there was no there was no basis from the prosecutor's jeff liberation to indicate  i agent gave a similar defamation about what had occurred and it was nothing from the other side there was nothing for mr keith's and even if mr keith had said we discussed it the point i was trying to make is you know the says well maybe we could have gotten the witness on the stand he would have said we had a discussion but he and i don't think there's any basis to to build for the court to find genuine doubt there because if that was the case they could have asked  that's one of the reasons why and that and why these i don't know i think that's one of the reasons why this court has to defer to the district court in these sorts of matters because this is a district judge who presided over this case for many many minds there were but the court here granted in this trial that wasn't the issue the issue is whether the district court had some they says to believe that the prosecutor had intentionally done that despite the fact that everything the court saw showed the contrary and the only fact that was possibly advanced here is that maybe there was some discussion even though the prosecutor represented during the hearing we didn't have any discussion about pornography what the court chose to that's what it that's what the prosecutor said not in the declaration but at the argument on the motion where there was some discussion about you know is the declaration carefully craft the prosecutor said you know we didn't discuss pornography under any euphemism under any other name we didn't talk about i didn't know about this deposition of you know a  witness a person who had supposedly been in the pornography business and the district court accepted that representation which he could have done after an evidentiary hearing but the court accepted that representation there was absolutely nothing on the other side and you know in cases and probably all of us we had affidavits in whence the court said you know there was no contrary evidence that was presented by the defendant and it was not and abuse of discretion not to hold a hearing prosecutor sort of turning the witness loose  and still the overwhelming evidence here shows that there was no intent to provoke a mistrial the government's case was proceeding smoothly it didn't want to have to bring these witnesses back to the eminently argued this trial and the district court was in a position unlike any of us here to observe the prosecutor to observe the proceedings and to make that determination so i would submit that even if the court could have made the opposition germination the standard is abuse of discretion the court didn't abuse its discretion because there was no genuine doubt here that the prosecutor's intent let me just take a brief moment to discuss the at the crawford issue i see mike you know my time is over but i did want to pick up on a point made by judge thomas that there really doesn't seem to have been a confrontation clause objection per se here in the district court primarily there were objections based on hearsay and authentication so this doesn't seem to be the appropriate place to come up with a new rule because there certainly would not be clean air but in any event the business records themselves clearly are not covered by crawford crawford itself had business records are not covered and survived is florists by this court also noted the business records are not covered we're only talking here about the certification that's the only possible document that might have any crawford implications and that document was not introduced at trial it was not introduced to the jury it was only used and we're talking about the section thirty five zero five certification it was only used for the district court to make the preliminary finding out a federal rule of evidence one of four that these documents were admissible so preliminarily the government in a footnote in its briefs noted that these confrontation clause issues briefs ruled on to crawford cases that look at various kinds of certifications and even though it has left open the question of business records the concerns that underlie those cases are exactly the same concerns here and they are even sort of further manifested in why land which had to do with the certification of criminal records from another state you know the court said requiring custodians of public records from all the different municipalities and states to have to basically travel all over the country to verify these records really would present a huge logistical challenge and there would be virtually no gain to the truth seeking process and therefore rejected the claims there and that would certainly be true here you know manifold because now we're talking about foreign witnesses similarly in surveillance as florists which was looking at a certificate of nonexistence of record in illegal ranchi cases the court said you know the business records are not under crawford and the certification really closely resembles the business records and moreover this certification is addressing some that were preexisting to the litigation and i just don't really have any resemblance to the police interrogation and the types of examples that were given in crawford so i think all of that reasoning would apply in this case as well if the documents are not covered by crawford these to two certifications which we can see which we would submit there not then we go back to the pre proffered law and then miller this court  section thirty five zero five against a confrontation clause challenge finding that there was sufficient reliability based on the ohio v roberts standard and i think the miller court also made a note which is important here and that is you know in a cold in the reliability the court said there if there really is a case where there is a genuine concern about the records and they relied only the records it's always possible for the defense to depose the seek to depose the custodian and that wasn't done here and from that we can infer that there wasn't really a genuine concern or that the defense decided not to take advantage of it but as miller indicated there is that option if there really is a genuine concern here there was no genuine concern section thirty five zero five was fully complied with and for that reason there is no crawford  problem i would just point out very briefly with respect to the government's cross appeal that we agreed that there should be every man for a full reset and saying not really limited am aligned remain and because this is a case where the record clearly shows that the district court would have imposed a different sense had it engages you to judicial fact finding this is a case just like the defendant fanfan in the book or a case where the district court limited the quantity of drugs to what was found by the jury and fanfan here the district court limited the offense level to only the facts found by the jury and said if i could engage an interest in traditional facts finding i would find a much higher offense level we now know that judicial fact finding is proper therefore the sentence was an reasonable and should be remained for from the sentencing and unless there are any further questions i thank you for the extra time about pornography and adult oriented business was was injected by the assistant u s attorney prior to that time there was a number of matters which i contend were improperly injected into the trial one of them included mr keats going up to the  to the to the jury stand with his briefcase and during the course of his testimony without any invitation he opened up his briefcase and he held up one of these counterfeited polo shirts to the jury so that they could  see what one of these counterfeit polo shirts looked like judge cooper had moved from this trial based on that judge cooper fall to me for not bringing that as a motion lemony i in my years as an assistant attorney and a defense lawyer i've never seen anybody do very aggressive in the case but mounted a personal war against me in terms of initially trying to move to disqualify me which was denied by the judge and at the hearing where the judge ruled on that she announced that she was going to serve a grand jury subpoena upon me personally for all my fax i indicated that i would the the government fax with the spin of friday at about four fifteen in the afternoon the assistant u s attorney knew that for religious reasons i'm never in the office friday at four fifteen in the afternoon because of the approaching jewish sabbath i received a subpoena monday morning on tuesday i filed a motion to quash the subpoena it called for my appearance on the following wednesday so gave me basically two days notice the next day dropped everything i filed a motion to quash that morning judge cooper granted my motion to quash the subpoena for which i will forever be grateful to her the government filed a motion for reconsideration that afternoon church group or deny that later that afternoon an f b i agent appeared in my office when i had already indicated i accept any grand jury subpoena by fax and went throughout the whole suite indicating the people that he was an f b i agent and he was looking the serving with the grand jury subpoena i had you know again filed a motion to quash that i also filed a motion to dismiss for outrageous government conduct the judge granted the motion to quassia in the gating that it violated the defendant's rights for preparation of trial but the night of my motion for to do dismiss for greatest government conduct so that some extent if the court were to consider what the average assistant u s attorney would do respectfully suggest that that standard not be applied in this case i had indicated  of of the defendant's rights which would lead to a mistrial but i think the record is factually unclear as to as to whether that court or this court reviewing the matter could decide whether the subsequent of the opportunity of questioning the prosecutor because normally prosecutors not become a witness in the case there was a strong incentive by the prosecutor to blame mr keats which is what you did my experience of life is  question mr gates there's a strong possibility that he would blame the prosecutor not wanting to be faulted for the cause of a mistrial and so i wasn't able to cross examine a prosecutor i wasn't able to cross across cross examine the f b i agent who i actually would have preferred to speak to rather than the assistant u s attorney given the circumstances and also there was no way for me to speak with mr keith scientists if he was an adversary to mr hodges hated him i was had obtained at least a draft declaration from mr gates as to what he said but then elected not to submit the declaration to the court so it was somewhere in the government's file but it i've never seen it and it never made it you know to the court in camera submission in terms of the statute of limitations argument i just like to call the court's attention to the it's page one ninety eight of the excerpts of brief it's the on page one ninety eight it's the second paragraph and it indicates that the only thing that the government is seeking is the records and that the certification will be sought some time later i respect him i respect with the assistant u s attorney spoke about but i think much of what you spoke about was really not an issue i 've never made a contention that the government manipulated that of the timing of anything but i don't think that's the standard either i think the statue on patience is just a harsh bar if you've missed the statue on the patients you've missed the statue  limitations the issue is whether it was extended by six months or three months the district court order did not indicate whether it was indicated told by six months or three months and it was for the district court to make that decision and for this court to do it on about that and i will certainly find out about it and i will provide information to the court i don't know anything about it there is a very large record in this case and list i polish eyes that i i don't remember everything that