picture of a microphone and a red line through it i think it's working i was putting below that so i'm sorry about that i don't that's ok we're all learning yes good morning may please the court my name is howard pincus from the federal public defender and a represent justin fast for two independent reasons the district court err in a one million testimony that lead mr fowler to fraudulent invoices bell the expert said that samples he used to compare with the no rightly question documents should be contemporaneous which he defines which he said was within one to two years of th year and the prosecution it was its burden to prove that these samples were contemporaneous as the expert said was required and they didn't present any thing else to show other than the one to two years that the expert said that's what he said he needed to make the comparison that he relied on they be the government's role on in part on the fact that this is not just science but based on experience and his experience taught him that it should be within one to two years and there was nothing other than one to two years that was offered for contemporaneous the only definition that the record shows contemporaneous is what the expert said and that's one to two years and there's no dispute that that that the samples here all of them were outside of one to two years although not the right well you by two and a half months it could be a bit more eight months on the other side maybe a bit more for some of the samples that he compared to but the point is if he said that he wanted them within one to two years and none work the application i want to just clarify that the only argument you're making challenging his application of this methodology is the whether the  there the problem was the methodology that's correct or on here the problem is with the data that the methodology was applied to is the same thing if you have an improper or not shown to be reliable methodology or not reliable data this court's authority teaches that the opinion that results is unreliable and shouldn't be admitted so it is comparable to a crew trial and the fact there was no hearing in crew trial there was an attempt to use deposition testimony to resolve it and there was some i think by the expert about how he didn't she didn't need to use the verification here there's nothing to show that using unreliable out of or out of time data would still produce for a lot result that's what makes this case comparable to crew time the nd problem is that the prosecution didn't issues about how problems with the you know the strength of the samples and some issues that might be had with the data methodology those for the jury but st it has to be shown to be sufficiently reliable to even go to the jury and that's the problem here there was nothing showed at all about testing even though the government seems to admit that it can be tested him writing analysis peer review we have almost nothing to do we just have that mr lin bill was a guest on the advisory board of a peer review journal we don't have anything about peer review with respect to what's at issue here which is relevant will depend on the case but the government doesn't point to anything beyond the daubert factors that show reliability here and if you look at the daubert factors they don't show reliability as to governments burden to establish that the methodology used here was sufficiently reliable were examples to reliability arbor our standard review is different then the application in that we have to hav deference to the trial court where the court has gone through a daubert hearing and looked at all of the information when would you agree with that statement well i agree that the review on the methodology busa discretion yes and the only thing that the court here said about the methodology being reliable is he's shown me that there's a methodology these not picking just picking stuff out of the air as just  experience in making such comparisons that is his methodology that over the years he has developed an expertise in making this comparison and he testified about all the things the loops and the spaces in the backward slants that he used to reach his opinion isn't that a methodology it's a methodology but it's not one that we have any way of knowing in this specific context error apes we don't know what the error rate he referred to went to because he never discussed it the standards he said there are standards out there but they're pretty basic he just cited one the s t m standards and he said somewhat don't even use them they don't find them to fit with what they do so we really don't know there's anything more than him say this is what i do these are differences i've noticed and i'm telling you you can trust me that this matches up and supports my conclusion and that's really what the district court did here it says he's shown me stuff that i can see i could see that there were these loops to me it looks like black magic but he says these days and they're there so therefore his methodology is reliable but we need more to allow expert tested it can't just be that the witness says i've done this for years and this is what i've noticed and this is significant is significant should they st this like united states versus bain's and saying reprint aben ence where the court basically said you know it's been used in court proceedings criminal investigations and other practical applications for years and it and we have determined by that use that it's reliable no i don't think so i think the there's been a lot of criticism recently about  handwriting analysis and how it is not to be is not based in science the national academy of science has said we need more testing on this fingerprinting fingerprint evidence has much more of a lineage in the federal courts and there's much more that people point to it here we didn't they didn't show that it matches up in that same way maybe the government could do that but the problem is that it didn't do it here it wanted to show that these things that he identified are things that handwriting experts say based on some data based on some testing based on more than just his experience shows allow somebody to make a conclusion about who wrote a particular document the government should have produced that evidence and the problem here is that they didn't there's very little knowledge he did you raise methodology in the record here yes we had in fact the district court said or you have to do is to say that you're challenging it and then it's up to the government to prove that the court said and the court viewed it as once we file the motion burden on the government and the government has an r v this is not preserved so if even if it were they would have wait wait that argument here so this court review is certainly for abus through and made a determination on a lot of guilty as i've said that determination was really nothing more that he show me stuff that i can see and therefore it's reliable but it doesn't have any footing in the daubert standard and the government doesn't point to anything else that would allow it the methodology to be taken house reliable and these were along the lines of como cuomo card company situation it's not it's not a pure scientific game it may not be pure science but the it is minding all the experts said it at pa sixty of volume two that it was scientific and the court said it's his craft and his science so there is a scientific component but either way the court increment higher said he still had to go through and establish the sufficiently reliable to go the dirt and that's what we're questioning here what we're challenging here is that it's not and this is evidence they relied on very in summation this is this is evidence  that was likely at great impact given how much time the expert said he spent on it as his thirty years of experience his use of jargon their argument that there was inside knowledge you have to cut against mr thouse being the one who  who committed the fraud because his inside knowledge would he would have committed a fraud in a way to be so easy to catch and there were also invoices submitted days after he was aware that chesapeake was looking into it and i similar rational juror but this court doesn't presume irrationality enjoys it presumes the opposite and in many cases and also in a twenty eight dollars jail or outing him this court has considered the length of deliberations drew struggle in reaching a verdict sloppy job of putting on its act or here well there is not much i mean it's sort of like we all assume we all know handwriting expertise comes in and i'm not going to go through the motions and oh yeah there's some study i'm not going to even name the study for you that says this stuff works i mean i i you know i recognize it's a difficult standard of review if if this is a case where the court things that strict up location of the dobber afters should apply that the record is not as a lab it not as developed as i would like it to be for the strict up occasion methodology as as the court has noted that the methodology in this case is the comparison and with respect to the the comparison methodology that mr  uses i do think the rest of the record as a quick to have shown the district court what he was comparing the exemplars he was relying upon how he analyzed the and it with respect to the specific areas a comparison that he found to mr bell's handwriting there though those were i think adequately developed and a diver hearing for the district or at least enough to cross the  reliability threshold now you know he said that you know he likes to have two dozen examplar is what he typically requests i mean in one instance he had only one and the other he had to do and i know that goes to application but honestly i i was this is the way was really seem to me to be an assumption that he and writing expertise comes in all the time and i don't really need to do anything to get any m m m i being unfair i mean i thought this was a very weak record in doctors apply when we don't think they do i think it would be requiring more than what's necessary in this case when when the methodology of being a pool a template is that simple comparison and the district court was washed through that comparison and how the expert  trial here is that i have a hard on really identifying clearly what mr lindell methodology is because he's pretty vague about it you know i'm i'm not sure whether he follow a s t m standards he says some people do some people don't i don't know you know apparently although he typically has a dozen example hours sometimes he relies on one and so it's really hard to do a strict application to say did he go through all the steps of his methodology when his methodology was so slop the context of handwriting analysis you know jurors through their everyday experience have some experience to draw upon to be able to on their own and also assess the reliability and credibility of the handwriting an it's performed and in this case i think that was certainly true at trial the government i think actually did a better job a trial walking the jury through mr lendl's comparison analysis and the taken his testimony a little bit out of context when mr lindell conducted his analysis he did so well before there was ever a criminal case he was conducting his analysis and in connection with civilization and he testified that he looked at you know crane the expert thought that she had done everything she need to do to be able to opine also we said well you dropped off a step a complete step of your methodology in that that doesn't work so much the expert i do think that when you're talking about an abuse of discretion standard to overturn a jury conviction on it contemporaneous argument that was never really raised with the district work below when you know when you have an abuse of discretion standard that we're right of course should be given substantial deference i think that is something for the court to consider and also with respect to in the group child case you know the the it's true that the that he would have preferred them to be he also testified about the concept of graphic maturity and how someone reaches graphic maturity their handwriting is is unlikely to change absent a change of circumstances like you know disease or intoxication so the fact that these signatures were you know in one case two and a half months outside that window i think that's fertile ground for cross examination i don't think it  testimony the court should not strictly apply the dobber factors here and you know with a highly deferential abuse of discretion standard the government believes that that those other district court opinions necessarily mean that the district court in this case abused its discretion and if you look at the united states the malory case from the th circuit that were in that case upheld a handwriting expert acknowledging that mr lindell was not able to give an expert opinion with respect to him and the jury acquitted on him right the jury did not quit on me on the counts involving a jeff willis signature the jury and you know i will acknowledge that i think the harmless error if you get to that is a close question and then pay but i again i don't think that's a question the court needs to reach because because that argued in order to get there the government believes it would require a strict application of the job or factors that just aren't appropriate for