after the government deported her the government the material witness attorney had no direct way to contact her the material in a cell phone had been confiscated as evidence so the only working number they had or the only number they had was for her husband however after the st call between the material witness attorney and the husband she had no response of information and there after his phone was disconnected and there was a message saying it's no longer a working number and so what the government is centrally saying here is that it can repeatedly call a number that it knows and disconnected it knows it's not working and that suffices to its constitutional obligations moreover that number wasn't directly for the material witness herself it was for her husband and he was in santa maria california the witness had been deported to mexico and we know from the techs at the border alert that she hadn't reentered the united states the number was just connected it was not directly for her and it was in a different geographical location than where she was herself why not are you saying now that it's clear why not because the government had her only phone is that does that what i heard you say yes your honor in the material witness declaration attorney's declaration which i believe is on page seventy begins at page seventy six dollars of the record she says that that miss before has a cell phone had been confiscated as evidence for the trial so when she was deported to mexico the government retained possession of her cell phone so they had no direct way to phone miss before because all they had was a number for her husband she was in cars are just so i'm clear because i have a document which has one hundred and seventeen in big numbers at the bottom is a declaration of kisses i guess it's her deposition which seems to be at least five hundred and fifty six on this he says she knows how to contact you in mexico yes and you promise to maintain contact with her is that correct that's correct your honor so prior to the deportations of both witnesses the government secured oral promises from them that they would return if your letter says that my attorney knows how to contact correct your honor but that i think by the attorney's declaration where she says i don't have a phone number for her i'm not necessarily faulting the attorney but in terms of whether i guess behold it is was truthful in terms of her ability to be contacted it's unclear on her but i think to go back to your question judge they are we focused so far on miss miss before because and i think if this court were to find that she was not unavailable that would actually it certainly your honor so under rodriguez and pena gutierrez which are the two cases from the circuit what we see the u s attorney should have requested of the material witness attorney send letters to the foreign addresses of both material witnesses  know you think that that that would have been an effective way of communicating with a well i do yes i mean was there any evidence that prior letters had been delivered to her when addressed so in that manner no your honor the that type of address at issue here where there's no house number no street number is indistinguishable from the address that was at issue in united states versus rodriguez there as well the material witness address was the scene number without a house number that court case this court said doubts at the address it's in the government's possession or sufficient for a request to be delivered are no excuse for not attempting to contact a witness to that address even though they may not have been able to contact her do that means your argument is they should have at least attempted or should have given the address to the material witness attorney certainly your honor i think that the requirement is a reasonable competent effort they may not have been me as something liars and she may not have showed up but at a minimum i think they had to at least attempt to sum the letters to her especially because they had no other direct means of communicating with her they only have this and especially going forward the notion of all the communications going through the attorney seems sort of interesting is just just word voyages that well they could have sent a letter or they could have given it does the government that is which way does this cut should the government done something independent or was it correct to not do anything in only go through the attorney i think on this record your honor the material witness me to us that the prosecutor did declare that the material and if attorney preferred to communicate directly with her clients but i think the government could have respected that attorney client relationship and still fulfill amendment obligations we already know from the record that the prosecutor was directing asking the attorney can you please contact your clients it's not much of a reach to say can you please contact them not just by phone but also by sending a letter to them here is the actual reason to thin she did your honor that is in the record i don't have the exact cite for it but what she said she did she had yes that i did or did she did she did so she so when they say attorney please get your client who has promised to come back she could have sent the letter independently because if the government had given her the address they would have only given her what she already had correct your honor she independently had it and the prosecutor likewise could have requested that she send it i would like to reserve some time the government has to show the prosecutor has to show that we tiriel indices are unavailable they can choose to rely on the material witness to help contact the clients but at the end of the day it's the government's obligation so any anything that there's some discussion about ethical obligation here would you say the government violated any ethical obligation if they tried directly i think there may be some ethically murky territory if the government had attempted to directly reach the clients and the reason i say that is because the on behalf of the united states so st just two points of clarification the usa did give the address or at least the town name to the material witnesses attorney and that's a page fifty one of the record it would  violate ethical rules to contact the material witnesses directly that's california rule of professional conduct to dash one hundred a so here i think the dispute is really over whether the usa should have asked the material witness attorney to send a letter and i think in analyzing that we have to ask what would that have done and i think we can  i mean the government confiscated her phone they had only the phone number for the husband they called that way and he couldn't find her it wasn't helpful then they called them and again  disconnected yet there was this address where a subpoena could have been sent my way sending a subpoena are asking here do we appear violated an ethical obligation i don't think it would have violated an ethical obligation your honor but i think there's an important fact being left out here and i assume here we're talking about before because yes we are talking out of our kids so when the counsel for the material witnesses was successful in reaching flores in december two thousand and seventeen she said have you seen the horses and flora said no and that's important here because the material witnesses knew each other they traveled to the united states together there from the same tiny little town their husbands cousin borken is was in fact present in that town and where oh then flores certainly would have known about it given their very close ties and these ties aren't disputed by the way if you look at page eighty nine of the record all the ties i just laid out are laid out by defense counsel so in other words it's simply not possible that if before kaz was there flores would have said no i haven't seen her and this is over the course of nearly four months  deportations occurred in september of two thousand and seventeen the conversation with flores occurred in december of two thousand and seventeen and how fluids you use the term i was going to see whether it was admitted or judicial notice but this is a tiny town so the fact that there's no street address street number or street really is not very relevant is that it is i would assume it's very likely that attempted letter would not have futile do you want to argue that well i don't think this is the main distinguishing factor between this case and rodriguez so i think there are other reasons why a letter wasn't necessary here but i do think there are counsel for a campaign and we filed with the f e c and they said you have not provided street numbers and addresses for the people in sandy hook kentucky they said sure there are no streets in sandy hook kentucky and they didn't prosecut i think they could ok but so but that's not a distinction with rodrigo's what is the distinction so i think there are really three buckets number one is what happened before you even got to the depositions because in rodriguez counsel did not give her the usa did not give the material witnesses subpoenas travel documents parole letters all of that happened here they also of course to promise to return for trial and to stay in touch with counsel that's the st bucket and why is that relevant i mean i mean that's that why is that a distinction with that it makes a meaningful difference here well i think it certainly certainly should be it's not the africa where you think our government supposed to do and here they had the address they could have sent a letter they did it and my biggest says in this circumstance he should rodriguez says that if that's all you have then you have to at least give that any of th know at the time when those calls are not reaching her is that she's not there because florence has already said she is not in where i haven't seen her for this you know period between september two thousand and seventeen and december two thousand and seventeen so to send a letter would be to send a letter to someone who won't receive so for that reason it was perfectly reasonable for the government not to send a letter that would never reiver not to ask counsel to do so rather and just as the supreme court in ohio v roberts said just as this court and dry as we can poison there will always be something else that could have been done but at the point when you know that in this case ending a letter isn't going to have much effect it's not required as part of good faith competent efforts so look at ohio v robbers in that case the usa is last attempt to get in contact with the witness was four months before trial but the supreme court said that based on the communication that counsel it had with the witnesses mother it was clear that they weren't going to get in contact with that witness and they could have done more for the courts that they could have called the witness a social worker but there will always be more you can do and so if it's not plausible that you're going to get in touch with them you don't have to take a measure that isn't going to have any effect yet you know that if you had sent a letter he wouldn't be here required as part of good faith reasonable efforts and here given that that letter there really doesn't seem to be a lot of debate that it wouldn't have had much effect it simply isn't necessary as part of good faith reasonable lower probability but it is true that it you know that once rodrigo's comes down i don't know what your practice is i would think you'd be a very good idea to always send letters if you've got letters sure again the phone for before kaz because her phone broke during the travel so she didn't have a phone that's why they didn't have the phone number that's it page forty six of the writer but this is the when they had the address for you had the ideas for well and again but given that they know she's not there and i think you are even i don't know she's not going to show up so she's she's not there at one time but she can come back to town right and i think the point is that given that  available you already knew it was disconnected so how is that a meaningful effort well they didn't know that flores was number was connected  successful in reaching flores before the nd trial they could have again asked have you seen her this time has she come back yet they could have just sent a letter well they could have asked council to send a letter again i'm simply not sure that it would have made much difference given what they already knew about the situation and given the efforts they had taken so i could have this council if you don't want to send a letter do you have any objection that we send a letter well  i don't think that i think they already knew the answer to that because the declarations for the usa say that council has already told them that this is a delicate relationship and that council wants to contact them directly and the final excerpts which says the material witness attorney preferred due to the delicate nature of working with her clients that she attempt to communicate directly not with you and you but there was you agree when it was he gave the page site that we know  we know missed before because wasn't in this tiny town but that communication occurred for months before a retrial and the case law is clear that the government has a duty to establish an availability at the time of retrial not four months ahead if there are no further question