thirty five hundred seventeen thirty five thirty seven seventeen thirty five thirty eight united states of america versus heard the voice malory use me use in margaret l big night morning may please the court my name is kathy not an arrow from the office of the federal public defender on behalf of kurt mallory i'd like to reserve two minutes for about the by you kurt mallory raises three issues for the court today first whether a sixth amendment right was violated when the district court excused the government's key witness from testifying live a trial second whether the court erred in admitting in an authenticated document and related testimony at trial and third whether the court applied the incorrect legal standard when denying his motion for a new trial the answer to all three questions is yes testimonial out of court statements are only admissible if the declarant is unavailable the record does not support a finding that gallery may carry mallory was unavailable at the time of trial the government that cited the medical records the most recent of which being from twenty sixteen june  sixteen the trial took place in november of two thousand and sixteen so i think the timeline here is very important so i'd like to walk the court through the timeline from when the court appointed counsel for curt mallory on march second twenty fifteen  all the way to trial so counsel scuse me was appointed on march second twenty fifteen on march fourth twenty fifteen curt mallory was arraigned the government did produce initial disclosures at that point to counsel on march ninth two thousand and fifteen a status conference was held at which point the court declared the case complex and the government made an oral motion to depose gary mallory based on his health he had been diagnosed with cancer and was in assisted living at the time the court granted that deposition and set it for may fifth two thousand and fifteen and during that time was gary in arizona yes he was so that was the deposition was set to take place in the arizona federal courthouse out o bviously in arizona so on april thirtieth of two thousand and fifteen kurt mallory's attorney files an objection a written objection to the deposition arguing first that there's no real proof that he's unavailable that the medical records don't support that finding at that second if the court were not inclined to grant that objection to for a continuance because at that point counsel said the discovery was a balloonist had not had a chance to prepare properly for trial we were still getting discovery at that point that point we had not read had a photocopy of the will which had been in the lab for testing we didn't have the copy would not be actually seen the copy itself nor had we seen any of the results from all the testing what was the  was it had a everything related to bank records medical records it had at that the covered up for years of the investigation into the the indictment covered about a four year period so getting to boil down to what the issue was that gary was going to testify and why he might have been testifying the way he was going to be testifying took a little bit of time to find out whether there was something that would counter his testimony so a lot of it was turned out to be related to other issues the bank records things of that sort there were things that needed to be sorted out about soupy the cording to the police the private prior incident involving gary mallory and his extortion threat things of that sort that were in there we just needed to find them so there were approximately fourteen thousand bait stamped pages in that discovery at the time that they were initially disclosed but the deposition occurred in what do may six of twenty fifteen or twenty fifteen and then the trial is in venice remember twenty sixteen and and you or your predecessor was were present during the actual deposition the video it was a video deposition in arizona that's correct on yes so counsel for the so when attending the deposition it was the judge obviously gary mallory did you make the argument to the district court that gary's situation was improved or was different from what it was during the time that you're you know you were not the council below right i was second chair we were is that so you were there so did your side make the arguments that something had changed or that there was some reason why gallery gary should be forced to come to the lido for the trial we never argued that gary should come to toledo for trial we only ever argued that gary should appear at the federal courthouse in arizona and testify by live video feed so there was never a question or never an argument made from us that he needed to sight but to judge moore's point did you ever make an argument that he was more capable closer to trial in other words that he was capable of doing that is in condition had improved from what the judge knew his condition to be and i thought in fact you were making it at one point the argument to the contrary that he had dementia and that that should be at least a part of the cross examination etc that's right there was never an argument to answer the question there was never an argument made that his condition has improved the argument was that his condition was at best the same and he at the time from the time that he travelled to the courthouse to the deposition and to the point where we were ready for trial so his condition was pretty much the same and he appeared for the deposition there was no reason why he couldn't appear there for trial as well we did make them so but there's the dimension issue the judge the earth alluding to that is correct play into this so  so that we made the objection in april before the deposition the deposition came on in may then in july we received medical records that he had been diagnosed with chronic dementia we didn't know what that meant whether that in sort of impeded hers might its changes testimony in some way we wanted to we wanted to have an evaluation so i see did he offer to the judge offered that you could take a second deposition there was never a discussion about  asked for a second deposition he did not did but he did allow you to impeach the witness at trial with expert testimony or the like correct expert testimony as far as medical dimentia he didn't disallow we didn't offer that because our our medical expert wouldn't a pine to his mental condition at trial because he was able to evaluate him so some of the problem was after we sieved judge say that he could look at the deposition and you could look at the medical records to the your expert to look at a lot of other things to pine on on the witness story that's correct in our medical expert did and it did produce a letter that i think was attached to the opposition and i can read it and might be one seventy four to one seventy four so there was but the medical expert could only go so far so there after he received the medical records from july indicating a diagnosis of dementia we worked with his trial counsel even said you could and i'm sorry to interrupt you but he even said you could introduce the medical records themselves through we did not introduce the medical records but he did say you could correct i assume i honestly don't remember but that's possible ok i don't remember him saying we couldn't i see that your red light is on and i did want to ask you one question about the new trial issue  suppose that we were to believe that the district judge applied the wrong standard and applied the rule twenty nine standard instead of the rule thirty three standard could we apply the rule thirty three standard ourselves without reminding it to the district court no judge because the limited were scope of review for this court in rule thirty three the manifest weight is this court cannot reweigh the evidence so you're effectively denying the district court the opportunity to do it in the first instance all this court can do is to look to see whether the judge abused his discretion which we argue he did because he applied the wrong legal standard so i'm not clear on whether this district judge is still sitting as a district judge good morning michael benz on behalf of margaret mcknight a please the court would like to reserve two minutes for my rebuttal i'd like to focus my discussion this morning on the second issue presented in the case and that is the issue of the handwriting testimony and analysis larry olson is an ink chemist a document examiner for the i r s and he testified in the critical component of this case and that is whether or not mr fooled us as well was in fact a forgery or a legitimate well his testimony is nothing but junk science handwriting analysis when it comes to determining whether or not something is a forgery is not an accepted scientific principle it's not subjected to scientific review it's not subjected to so first off jones was decided pretty daubert and was not subjected to the dougherty analysis most of the circuits that are reviewing the issue of handwriting analysis are reviewing it under evidence rule seven o two or nine a one that's a predicate question first must be addressed as to whether or not it's reliable scientific evidence under dobber and that is something the circuits have not yet started to address the district courts however are addressing it across the country and almost uniformly finding that when it comes to determining forgery handwriting analysis is not a scientific principle but it's different to pick and it's not something that can be expert opinion that's correct they were not debating and arguing that larry olson is not an expert and satisfies the testimony under seven o two the issue is whether or not what he's an expert in is in fact real science this is analogous to the f b i s extensive witness testimony i lost you there are you saying he can give a specialized opinion or no he cannot because the evidence the expertise that he has is not an accepted scientific principle but we're not debating whether or not he's qualified to do his job but are you saying then that only experts who testify about science can testify no no your honor no the only experts who testify whose whose idea or issue that they're testifying about satisfies the da standards could allow a witness give this opinion a witness c witness could say this looks like it or looks not like the issue becomes when the expert then makes the second step and says this document is a forgery which is what mary olson testified it's not whether or not this looks like mr his test signature or doesn't look like that's how he concluded it right so he's not saying in my expert opinion this is a forgery saying based upon my conclusion of the signature this is a forgery based on his analysis of the of the sample and the sample signatures and the will that's a conclusion if a lay witness said this isn't this is the signature that's just the natural conclusion that it was fo that secondary step however that runs afoul of daubert and explain that to me because i don't understand how that's expert analysis versus just a conclusion drawn from the analysis of the signature so there is a difference between a conclusion that simply says this signature does not look like this ignitor and a decision that says this signature is a forgery of an original sin a reason you're saying that is the same person could have two different signatures and in fact but i'm sorry go in fact that's were very also testified about so there are two guiding principles when it comes to forgery handwriting analysis first individual handwriting is unique second the are disparities among individuals handwriting so in that type of a situation indeed looks at that and says well there are similarities because this must be the same person but then he can explain away any differences between a sample and a composite by saying oh well there are going to be inherent differences even if it's written by the same person so we end up with a situation where he is able to choose what it is he's giving value to in order to reach his conclusion it taking out the fact that he doesn't actually even then computer all four variables that could in fact impact a person signature from one point in time to another so what would you say are your best case support the principle that you're arguing for here we've cited extensively the district court cases in the court i don't have your are the citation to the case or i don't think anyone or get cases not at this moment know they're working their way through but it's the district court that decides these cases on first in now i believe that one of the defendants introduced a handwriting expert as a witness in this case as it was in your letter ok so would this disqualify your of course as well it w and did you argue that your witness was able to opine no i did not i did not represent mr mcknight a trial and we did not argue in our in our brief to this court that the dueling witnesses somehow cancelled each  i'm sorry your isn't there sort of a waiver idea that if you if your client argued below for a handwriting expert and now you're challenging on appeal the government's handwriting expert on the grounds that it's not appropriate for expert testimony as a as a whole field there seems to be at least a waiver kind of argument you know there may be some other term to describe it but let's call it anything lean i don't think that there is an inconsistency in that the initial argument was made to the district court that there should not be forgery evaluation and evidence presented in the district court permitted that it then becomes incumbent on the coun the expert so but we saw the same situation when the f b i would testify about the composite blood and blood lead analysis which he argued below your client did your client argue below i'm sorry it's a she right yes your client argue below that handwriting experts were disqualified her basically couldn't opine no it was limited to the issue of testifying as to whether or not a signature is a forgery and that's what the national science it's the tube has taken on directly as the problem with handwriting analysis is not the comparison of handwriting it's the decision is germination that something is in fact a for expert opined it wasn't a forgery yes but what i'm trying to figure out what the problem is with saying that a signature is a forgery is that because it is the ultimate legal question it's beyond the science it's beyond the scientific ability to do that and once it's beyond the ability of science to do it daubert says that testimony lies in the hand you're analyzing the signatures and you're saying i can say i've looked at one hundred signatures from this person this one is can say what he can say is not similar similar to then why isn't it harmless error to let the jury conclude that it's a forgery that would be something the jury is able to but we know that once we wrap somebody in the  science that that weight in the jury room is much greater than any other you need to get rid of gary mallory's testimony in order for it to be not harmless no the jury may not have believed gary mallory at all we have no idea what they did with gary mallory's testimony but if you become slide it was a forgery but what they had was the i r s chemists coming in and saying in my expert opinion this is a forgery thank you thank you court says technical nonscientific his ultimate conclusion if we can look at the record and see that he's qualified to opine the expert the answer is no the expert in  hear was eminently well qualified but his methodology was found not to be read the law judge carr found that that was well there were no findings made as to why his methodology was which is what i heard in kumo tire but he talked about right he testified that like i don't know ninety one signatures he had looked at and that this concluded had been peer reviewed and all those things could it we say ok he found it reliable here are the reasons on the record there's no reason to re mandate for a limited finding well he also said he he's perfectly real which is hard to believe but that's irrelevant because he that none of that came out in front of the jury he's just making his conclusions based on the record outside none of this was in the your shot of the jury correct  rate of error no way to control for that argument's different than the argument you're making and let me tell you how i phrase you should tell me where i'm wrong i look at this is two arguments the one your friend was making which is no matter what he did he making the first argument which is no judge there's no situation under which this judge could have concluded his testimony was sufficiently reliable such that it should have gotten to an expert is that fair  ok and i don't think it can be carried to rise this was because this guy was so proud of the jury would have to have been swayed by him i'm sorry is significantly less well less impressive i would have liked to have him testified at trial because i doubt if you could have told the same story the same way as to his or her observations well i may see this i wasn't dotted the same way there's not as much pressure here no problem with that in a lay expert or and this looks like the way she signed everything i've seen here we have an expert who's opining on handwriting he's not from here with us right but he looked at ninety one signatures right i mean this is y sentencing remain and with respect to current mallory and susan with respect to the financial hardship victim enhanced meant and i just wanted to explain why we have not done that with respect to m mcknight we do not believe that she is similarly situated to the guideline based sentences that mallory received in her case the court granted a substantial downward variance to twenty four months identity aggravated identity theft counts and in doing so the court said it was doing so slowly based on the arguments that defense counsel had made which were tied to mitigating arguments under thirty five fifty three a in short the court made clear that it would have imposed the same twenty four month guideline sentence irrespective of what that guideline range would have been in her case it would have been forty six months to fifty seven months without that enhancement so while we do acknowledge that it should not have been applied under the ex post facto clause because the enhancement did not become effective until after the offense conduct ended we do believe that the error was harmless beyond a reasonable doubt and the court can nevertheless affirm her sentence and unsupported cite the court to the united states versus camper which is seven forty eight fed thirty seven twenty eight specifically page seven forty four it's a six circuit two thousand and fourteen decision concerning the harmless error standard what was the end of that side so i'm sorry third third seven twenty eight and looking at page seven forty four it's a six  it two thousand and four decision because we believe the error is harmless in her case we danced at the court affirm the court's decision as to her sentence and unless the she hasn't your honor but i just in why is it even before us well in case the court was inclined to address it the government just like to explain we have authority to address it if it's not appealed  seen it before so i just by way of explanation as to why we have not filed a joint motion in her case and at this point unless the court has questions on move on to the other issues with respect to the motion for the new trial the court did apply the correct standard the court specifically found or kind of bungled the standards i mean if you look at it it's talking about you and me evidence in the light most favorable to the government well your honor i think what is important to look at is first of all that the court did cite the correct standard that the convictions were not contrary to the manifest weight of the evidence which is page eighty sixty fifty four the court did make that comment but i think it's important to look at what the court actually did but look at look at the conclusion he says viewed most favorably in support of the guilty verdict is that consistent with the rule thirty three standard oh it's not your honor but the court did what the court actually did when you look at its analysis is consistent with the motion for new trial as mallory acknowledges in his brief when you're deciding the motion for judgment of acquittal by contrast you cannot independently weigh the evidence you cannot assess the witness credibility and that's what the court did in this case in denying the motion for new trial he looked at mallory's testimony looked at the handwriting expert testimony and said you know what they're equally possible it could have gone either way they kind of cancel each other out but then it went on and said susan p r is different because if the jury didn't believe her there's really no need to look at anything else why is that isn't that negative evidence i mean what's the affirmative evidence that comes if you just had r testify what's the affirmative evidence that would have convicted the defendant's disbelieving or is different than affirmative evidence well i think her impossible testimony about explaining how she came into the funds the two hundred thousand that she was doing work for gary for let's say that she lied about all that which obviously the jury thought what's the affirmative evidence that the defendants are guilty in other words i'm not understanding how just look at the elements and her testimony could you when i haven't gone back and done this book could you when just looking at those two things you can you have a lot of you have her testimony that just simply isn't plausible for how she got this money why she was amending her tax returns the fact that she advises margaret mcknight to not engage in transactions that are over ten thousand dollars and i think it goes to the concealment that they knew that they were not entitle to this money and they're trying to conceal the fact that there is this forged will you have an executed documents that are dated in august two thousand and ten one is a will that's almost identical to the june two thousand and ten will which was executed there's just no possible explanation for the initials you have fingerprints of the defendants various defense on these on executed documents from two thousand from august two thousand and ten that were found in mr feels his residence and so there definitely was enough there  and so by finding that susan p r was not credible that's fully consistent with the jury's verdict is in this case in the court found that it was unlikely that the jury would have credited her and while the court did mention sufficiency essentially it was responding to the defendant's arguments about that specifically pages five six six three five six six five to sixty seven of mallory's motion and six thousand and one of p x reply where the defendants are arguing that with the with the remedy if there were descended for him to do it under the word standard that could be a method but i don't think that's appropriate in this case because i think the by the fact that the court found susan p x incredible that that there is an adverse credibility finding i think this court can accept that view and find that that is consistent with the jury's verdict and  confirm on that basis so you're saying that we would be looking at the statements that the district judge made to say that we could infer that his ruling was a proper ruling under the new trial standard or would we be deciding ourselves whether a new trial should have been denied i think would be accepting the court's view of the court's determination about susan p credibility which i think is consistent with the thirty three motion because what the court was doing was making a credibility determination and was determining the relative evidentiary weight in that case and that's accepting the court's view i think that's consistent so while the court did use some incorrect terms i think in the end what the court did by making that adverse credibility finding is fully consistent with a denying its obligations to decide motion for a new  trial with respect to the handwriting analysis the court properly it made it expert testimony on that i think the defense argument seems to center on the fact that this is allegedly junk science but it doesn't have to be scientific think you know that the issue of whether it's admissible is whether it's going to assist the jury in making a determination about whether the writing is genuine or can be a forgery i think it's incredibly helpful to be able simply just to point out whether there are similarities or dissimilarities i point frankly don't understand why it's being excluded but your opponent is arguing that that the conclusion that this is a forgery is something that cannot be admitted because it is not a science and it is not subject not not shown to be reliable and the district judge was pretty finding reliability here right there in the district judge give any reason to find it was reliable no your honor and certainly it would have been prefer the stay to provide an explanation what the court did find that it was thoroughly reliable and i think when you look at how active the court was during the board year it makes clear the reason why the court did wholly accepted during the testimony of the court and specific questions about methodology about accreditation whether or not olson had ever been precluded from testifying on handwriting analysis yes specific questions about how computer analysis works in its accuracy and all those are tied to the daubert factors and i think when you look at in that context that it makes clear why the court accepted that view and that's it ph id thirty six eighty nine thirty six ninety one ninety three thirty six ninety five thirty six ninety nine to thirty seven hundred thirty seven zero three zero four where the court was asking specific questions it was very actively involved during that process they seem to at least it argument i know they haven't technically abandoned but abandon the argument that he didn't make sufficient findings and focus more on what judge moore was saying which is the ultimate conclusion that this is forgery is beyond the purview expert testimony so it didn't matter who it was o whether he himself was reliable it's that the ultimate testimony is not acceptable period why are they wrong about that well because it's alternately up to the jury to decide whether or not to accept the experts that the jury has i mean the judge i'm sorry has a gate keeping function that keeps junk science out to use their terminology and i'm why if if it's truly in other words if we conclude it's junk science then this was error no matter what findings he made correct in other words it's beyond the purview of opinion testimony correct it's expert but i would say that it's not science that it would be more technical or specialized test ok fair so let's say it still be on the purview why is it within the purview i mean what what do you have any articles i mean they point to this whatever the standard the american whoever it is industry do you have anything to the contrary well i mean for in are you asking about in terms of general reliability yes well i think that  the witness pacifically talked about being certified point i abhorred he had to pass a test he has to go through annual certification is that to analyze handwriting ers that to conclude it's a cord because that's where they draw the distinction right they say you can say this is it this person signature what you can't conclude from it is that it's a forgery that's where they have heartache right and the conclusion here was that it probably was a forgery but it wasn't it definitely is a forgery in this case and i think i mean and minimal honestly that the experts is there sort of a waiver i realize i'm using the word waiver very loosely here but you get the drift that a waiver problem for the one defendant who in fact introduced an expert on handwriting to then now be complaining about the use of the government's expert on the basis that that it's junk science we have not looked at it in that way but i think that there's a good argument to be made that there is a waiver if you bring in your own expert and then argue that the expert  and i push back on that a little because it seems to me a little unfair if they did it in the posture they claimed which i haven't gone back and checked which is they fought the expert for the court ruled the expert was admissible and then they went out and got the e it seems to me that that can't be a waiver any time i know it's being used loosely but that seems problematic to me because now they're stuck because the courts made a ruling they need to go get their own is that the did it happen on that timeline i think i can answer that i don't know what the timeline was in which they secured their own expert but wouldn't it matter the time line being when they introduced the expert because people prepare all sorts of different ways for a trial but if they were going to use the expert and didn't use the expert then i wouldn't be suggesting a waiver possibility so i assume the government expert came in first yes in fact i mean we the handwriting analysis came and this kind of relates to gary mallory's deposition but this was done early on we the initial and the analysts that looked at this she would ultimately did not testify because of a health issue but this was done back in two thousand i ask you about that deposition why not give them a live feed i mean that's seems like a reasonable request well he wasn't pretty poor health by the time that the trial occurred but i thought are they inaccurate there were no findings made in no medical records submitted at the time they were made this request in other words the timeline i thought she laid out was like march and then the trial and no medical records in between i believe there was medical records i thought the remember records around may or june with respect to the dementia  but certainly his health was not expected to live the dementia shows his health was deteriorating he was deteriorating so at the time that he was deposed i mean he had a host of medical issues with diabetes he had bladder cancer a chronic disease he was hospitalized twice after this deposition and he had news serious conditions he had pressure not pressure sores which could be quite serious if you're diabetic  this is not a witness that was going to have a miraculous juv requited they just record offer them and if he didn't the opportunity to depose him again at least limited to the dementia i can answer  that he did give them the opportunity to secure expert testimony concerning his mental state at the time which can be found it p j d nine twenty six his record entry number one and am i right that he also offered that they could introduce the medical records i believe there was that offer what was the so they made a motion to exclude his testimony were there any were there other motions related to his  and although the defendants point out that he did go to arizona in june of two thousand and sixteen should be about four and half five months before the trial in this case that sentencing hearing only took fourteen minutes and that's far less time than the two and a half hour deposition and would have been far less time than what would have been required for him to sit through direct and cross examination and he was in arizona and went to the courthouse to be sentences correct but there were certainly some medical records with his in october two thousand and fifteen showed that he was in significantly bad health and that generally for his medical appointments he needed to have house visits instead could they have done the deposition of this house then i don't see a reason why they couldn't have him was there you know the dimension was such that you know he could not he was not a state to testify i don't know what the severity of the dimension was at that point but they certainly had the ability to cross examine him during that deposition a did in fact ask him about his memory they asked him about oxy cotto news and whether he'd had some confusion when he was in the backyard of one of his daughters they asked him about  telling his daughters or one of his daughters a different account of this will when it was signed so their theory that he was just lying that he didn't in fact he was saying he force a signature but he in didn't do it correct yes that was their theory and they were able to attack that during the deposition and in fact i think they had a benefit especially by being able to teach him without his ability to explain by asking his daughters well didn't he tell you a different version didn't he say that you he signed it in the attorney's office instead so they were not prejudiced in any way  they certainly had the confrontation right with the deposition and the court properly admitted the testimony given his health in this case  with respect to the exhibit five o five that the court admitted for impeachment purposes the corps properly admitted that under federal rule of evidence nine zero one before the defendants argue that there was no witness it had personal knowledge but you didn't have to have personal knowledge you simply had to show sufficient distinct characteristics of that document that a jury could find in f that it was more likely than not what the government claimed it to be and what our theory was is that this was a fabricated document by susan p r to show that she was doing legal work contemporaneous to this will kick knowledge is this came from her own proposed trial exhibits and it contained an endorsement that said it was prepared by susan p r t eskew she never denied that she or someone in her office prepared it  in fact when the prosecutor asked did you prepare an affidavit for martin feel as she said that's a draft power of attorney or referring to the document which is at page eight hundred forty eight seventy six she then said that her legal assistant could have prepared it and when she was asked well how did this airline row document our address get into this document she said that martin fewest would have told me about that that's the only way it could have gotten in it was disclosed to the government you know so you got to so the government didn't know about it until and so she puts it on her exhibit list and then later says i'm w taking it back it's not authentic i don't know anything about it but when she puts it on her list does she actually provide the document to the government she physically can't give the physically gives this document for five and agent cost actually testifies that i just recently saw this document i didn't know anything about this document before it was never found during the search and it should have been if it had existed because it had a date that you know predated the search so it should have been uncovered with all the other evidence that we seized from her her residence but it wasn't so that also was i think he was it was a hard copy that was produced there was a worked on i believe was a hard copy so what's her what's her theory as to why she produces this document i don't know why she produced i think it was to try to i think this was fabricated to try to show that she was doing legal work  lists and that she wanted to show the money she got was tied to the work she did for him for act but that whole theory would then be supporting the idea that it was properly authentic it that would that came from her but it came from her records and the court found that it couldn't have come from anywhere else and we believe that that was a proper finding that the distinct characteristics of those documents with her tax filings were simply beyond incredible and implausible that was the most damaging testimony to her not necessarily this document and once this court has convictions and affirm this midnight's sentence as a whole thank you thank you just a quick point of clarification that handwriting expert from the defense was our witness mallory's not margaret mcknight's so i don't know i can't speak to what preservation she did on objecting but that was not her witness as far as the new trial goes the court clearly mixed up the standard you didn't object to be expert right no no correct correct i did not raise that issue on appeal that so the court blended the standard or reviews for the new trial and the rule twenty nine and i think this comes not from my brief but from the government's brief in opposition and so if the court looks at the government's brief in opposition which is that docket three forty two the government in their brief conflates the two standards if we ultimately complete in reviewing his order that what he ultimately did is proper under the rule thirty three standard there would be no reason to remain correct if the court could make that conclusion but i don't think the court can because i don't think that you can read his order and say that he independently looked at the evidence i think he looked at it in the light most favorable to the letter we preclude it from doing that yes and i think their case yes yes there is  is that in your brief i can find it yes so so the remedy let me understand the remedy we just send it back and say do this the right way yes so i mean the court could ask for more briefing if i wanted to or the court could just redo the standard of review and and then review this testimony and weigh the evidence as it as it should independent and which defendants  confused about what the stand dirt is here it's the burden on the government to show that he's unavailable at the time of trial there's no evidence in the record to support that he couldn't travel his dimentia clearly wasn't so bad that he couldn't appear for sentencing on august thirtieth of tw sixteen the court proceeded with sentencing thought he was of sound mind at that point so a couple months later we proceed to trial the court has no updated records whatsoever the court determines that because he is home bound that he is race ipsa loquitur not available and that's just not supported by the record but they have set up a video feed at his house is there any evidence about that did you present anything or show the court that they could do that i'm sure they could we did not ask because he clearly traveled to the courthouse and his health was the same essentially as it was at the time of the government's point about that sets of fourteen minute hearing versus three hours in those those could be significantly different one you just sit there in a sentencing unless he allocute it another you're actively involved throughout and i would say that the government has forfeited that argument below they did not make the argument that he couldn't travel in withstand the rigors of testimony what they said was he cannot travel he's home bound he cannot leave that it is the classification of the medical providers the classified him as homebound is proof in and of itself that he cannot leave the house which clearly isn't true because he did on august thirtieth so whether he could left for half an hour or four hours that wasn't the government's argument below we were fighting over that we were fighting over whether he could leave at all so with that i would just ask the court to vacate the conviction to try thank you thank you there is a difference between admissibility and a rule seventy two in the gate keeping function of daubert in kumo tires what happened in this case was that the district court failed to conduct the gatekeeping mechanism required to determine whether or not larry that procedurally it was correct what we know is factually it's wrong handwriting analysis as to the determination that something is a forgery is not valid scientific review and ship saying is just so i'm clear no matter what he did he was wrong correct that i had the best hearing the best findings is wrong correct and i would point the court to the catastrophe of the f b i he's led bullet analysis every single agent who came in and testified was an expert in analyzing bullets they knew how to do chemical testing they use proper methods you get that you have that in your brief but so there is nothing i just want to be clear the if we disagree on that you lose yes and if we agree you then we have to then we perform a harmless error analysis i would i would posit that there is no harmless error i understand under this but yes i have problems with the district court simply saying in one sentence i find it reliable but that's not are you're not saying that all of his testimony should have been excluded no no what is it come down to one page in the transcript curious is  one question is it one opinion it's the it's the section of his testimony where he bolsters and supports his conclusion that this will is in fact a forgery but he say probably he says probably what was not done however was to explain scientific methodology of what probably needs probably is the second weakest decision that it might be a forgery again those were things that weren't done in front of the jury of two separate issues the issue is he shouldn't have been testifying as to those things in the first place and we know that the f b i we know that these experts in this type of science cause great damage in the criminal justice system can willingham was executed by the state of texas based on junk arson  earhart was executed on the basis of bullet analysis they make these mistakes daubert is designed to protect defendants to protect the criminal justice system and what happened in this case failed for that reason we except of course so it's kind of an artificial month and jones held that since it was pretty low time i hear that the daubert standards did not apply but jones was less specific in articulating which standards did apply now with respect to our five zero five kind of like trust faith if a person commented disbelieving a witness is different from affirmative i mean if she produced this document isn't doesn't that take care of the argument no i mean it came from her files right she represented to the government and this was and her lawyer filed the witness occupants and this was in there no idea where this came from it wasn't used for anything before trial it wasn't used for anything by the defendant at trial it wasn't used demonstration of authentic city where to and from and she didn't acknowledge that her office prepared it she speculated that her secretary may have prepared it but she didn't the case will be said the clerk may call the next case