we will proceed to the next case which is the united states versus body  good morning come right up if you would just may it please the court my name is julie holt from the federal defender's office and i represent mamadou body on i will discuss the district court's failure to give mr body on any remedy in response to the government's inexcusable late discovery disclosures in this case and as well as the sentencing issues the totality of what happened in this case created a unique combination of circumstances that deprived mr body on of a fair trial and he should receive a new one the night before trial the government turned over to defense an additional two hundred pages of discovery consisting of mr biomes entire alien file this nearly doubled the discovery in the case then at nine forty one pm less than twelve hours before this trial was scheduled to start the gum government filed its exhibit list when the defense saw that for the first time defense realized that the government intended to introduce a multitude of four o four b evidence for which they had given the defense no notice when the trial began at nine am the next morning the defense moved for its second motion for continuance based on the late discovery the short period of time the defense had had had been appointed to the case as well as the four  it wasn't a notice but the new information that the government intended to introduce for a four b evidence the district court denied that in the alternative the defense moved to exclude the four hundred four b evidence and the late discovery the district court also denied mr body on that remedy when the trial started the defense did not have an opportunity to review with mr body on to consult or confer with him about that two hundred pages of discovery turned over the night before nor did the defense have the opportunity to confer with mr bradley on about the four hundred four b evidence that they now knew the government intended to introduce and how that would play into mr bob young's decision whether or not to testify in this case i want to talk first about the four hundred forty actually how long had you been in that case was it only three weeks or four weeks what was the time for it was twenty two days and what was the reason the public defender was appointed as opposed to the original lawyer in that case how did that happen so there had been an original lawyer mr pierre and then as the case went on both mr body on move mr body on initially f lawyer correct your honor well he had filed a motion to dismiss and then judge barber the magistrate judge heard both of the motions at the same time to the attorneys motion to withdraw as well as mr body on the motion to dismiss the attorney for him moving to withdraw from the case my recollection is that there was a six thousand dollars retainer that judge barbour in his order found that the attorney mr pierre had done enough withdraw stated irreconcilable differences mr body motion was less clear as far as the particulars of what the disagreements were later on in the record in the one of the pretrial hearings there is discussion where they talk about the fact that mr pierre had negotiated a plea offer that was not what mr bob beyond had originally intended or originally wanted to accept there were two two days when you were appointed and then you said you worked a lot on trying to do a plea agreement for most of it correct to judge so it was a it was a total period of twenty two days that the public defender was assigned to the case before the trial started me as one other just that question here did there not come a time when the defendant himself moved the district court to dismiss the indictment on speedy trial grounds  your honor and it was he was he counseled at the time that he moved ross saying no so that was between the time that the district court destroyed lawyer one on his motion and appointed you exact intervene how long a time was there between the time the force first lawyer was gone and you folks were appointed i believe it was a week the first lawyer was dismissed july fourteenth and then the federal public defender was appointed july twenty second and then a specific lawyer was the time assigned july twenty sixth in that interim the judge the district court had appointed the federal public defender for one purpose only to determine whether or not mr body on qualified for the public defender so there was that right to during that gap that the defendant says you know what this thing set into law this should be dismissed on speedy trial grounds correct so it was in that time period that he filed this pro se motion so the delay from the time of the indictment to the time of trial is how long the indictment was filed i believe april fourth two thousand and sixteen and then the trial began august seventeenth two thousand and sixteen so it's four and a half months roughly correct but i do want to highlight that the again that the public defender how i appreciate you were only there  three weeks but also that the just three weeks is the government then dumping all the stuff on your trial and the last time there was a very tall order saying they had to do this ten days for a trial like the rules are correct well the trial order actually referred to local rule eighty eight ten with regard to the discovery and required the government to give the discovery fourteen days after arraignment which the defense the public defender only had the initial discovery which was two hundred thirty pages first seven days but certainly only had this additional two hundred pages for fourteen hours before the trial started openly with the issue of prejudice as i understand it in this case the argument is that by getting this dumped on you so late in the day you didn't really have a chance a to digest to be there to consult with your client and see to come up with other witnesses who might have rebutted or counter or counter what they were presenting tell me more specifically if you can what the prejudice was yes your honor and that if you had had an additional week or ten days or two weeks or a month what you would have done that you were unable to do here because there was no continuance yes your hon or first and foremost there were five witnesses who could have corroborated mr bobby on's testimony and the defense in this case that the victim nestle met tire sold his own identity to mr bob beyond there were two witnesses who went to the meeting one of the meetings between mr met tire and mr body on and could have testified that mr mantei air introduced himself as enrico and that this and rico person was in fact the alleged victim in the case mr mantei year there were two witnesses who could have testified that the and the man known as and rico offered to sell the documents to mr body on  represented that they were of a fictitious person which the issue in dispute here was whether mr body on knew that the documents belonged to a real person and his testimony at trial was that the man who sold them to him told him they belonged to they did not belong to a real person they were fictitious he had someone who at the vital statistics office who could input this information and create an identity so those two witnesses could have corroborated that testimony of mr body and that the person who sold him the identity said they were not of a real person which was the only issue in debate additionally the defense could have gathered evidence to show that mr body on family did live in yes your honor it's in the motion for the new trial which i believe is docket entry sixty three so what the district court say when you came back and said look we had some really cool robert of the evidence that suggested that what the defendant was saying was true and certainly went to one of the critical issues in in the case of one of the elements that the government had to prove beyond a reasonable doubt the district court in its order denying the motion for new trial did not my recollection  did not give me a respite killers at that point you had you had laid out the witnesses that you had family correct and the district court did not engage in the particular of what of the of the evidence that the defense could have introduced would it have had more time to prepare this case me ask it is how long did the whole approach trial take it was one one and a half days the jury was out before lunch on the second day so it was less than two days from the the jury was sworn to the time they rendered a verdict correct your honor and if i may i just want to highlight that the before you leave i always worry about this was like second week of a trial calendar of the believe that this was the beginning of the two week trial period i'm not one hundred percent certain what the record tell me and i'll ask the government the same question because this ought to be something stipulates a public record i could try to go figure it out as to what middlebrooks published here because it just is troubling because i've had another case recently where they just dump everything you see if we keep improving this than it's just problematic correct that is my position i'm not sure i don't recall exactly whether this was the beginning of a two week trial period i believe that it was that it was set out because i know that's how you and the government can figure this out right yes certainly that would not answer my question and i take it there's no dispute that the when the prosecutor gave you the information the prosecutor had just gotten the information that night right correct no indication the government the prosecutors sat on the information correct there's only cation the prosecutor did however the government had that i understand the government is a lot more than the prosecutor ok correct your honor there the record reflects that the got to ask the other agency to get the file right correct do we know when the government asked the other agency to produce the file i don't know that information i know that in the hearing discussing this the government maintained only that it received the file the night before the defense counsel in the case did bring up the fact that their agent had had it since february but there was no discussion as to when the particular prosecutor requested that final question and you're on our time you will have your full time for a public one of the things that sort of perplexed me about this if i have this right and correct me if i made a mistake on the record and present exactly this defense in his pro se motion to dismiss the indictment before you were appointed to the case in other words didn't he suggest all of this testimony that material sold him the identifying documents isn't that really what he says so and if that's so didn't he already know when he even independent of this drop of the materials the night before he did that was what he laid out in his pro se motion the very substance of what you wanted to present with five yes if i'm understanding your question or the intent of your question it's whether the defense we had known the defense or the fence was previously laid out yes and yes ok yes so he did lay that out in the in his pro se motion and that was the defense at trial i think the distinction and the prejudice comes where again the public defender was on the case for twenty two days had discovery for seven and rights right right right but what i guess what i'm asking is stand and he testifies but if in fact body knew and indeed raised the very issue substantially  before he could have discussed it with his lawyer he was aware of this i guess it's the prejudice that i'm that i'm that i'm raising he was capable of rebutting independent of anything that was presented in the dump the night before because he was peculiarly in possession of all this at least at this what i'm asking maybe i misunderstand this so i think i understand your question which is that  the evidence that the got or that excuse me the defense could have gathered to rebut that you are to corroborate the general defense correct yes that was not related to the alien file dump the night before that prejudice is related to the extremely limited amount of time the defense had the case however the the prejudice from the dump the night before comes with the four o four b evidence that the government was required to give notice of to the defense ok to the extent that it's the four or four b stuff to the extent that it wasn't just for a for b but was otherwise intrinsic in the notice requirements are a little different i think correct but this was not intrinsically related and in fact the government themselves extricated though the four passport applications that they claimed to mr body on submitted in different names exhibits one see through after the government did not even introduce them in their case in chief so the government themselves extricated that from from their story and their presentation in order to be inextricably intertwined it has to be linked in time and circumstance it has to be a necessary part of the account or or integral an integral and natural part and the government did not even introduce that in the case in chief showing that there was not in fact inextricably inexplicably intertwined particularly because the only issue in dispute was mr bobby on the tent and whether he had knowledge i think we have a and you've reserved your  the indictment was on march twenty ninth and trial was august eighteenth to judge holds question in regards to the first or second week of the trial period this was set on a wednesday of the first week for a little context the defendant was intending to change his plea on that monday and wednesday before trial he had filed his pro se motion which your honor lou to that he would he was guilty of count one and that he was not guilty of count two because he did not know the individual was a real person that was what he was going to plead to on that monday he arrived monday morning before the magistrate judge which the matter was referred and refused to change his police saying he hadn't had enough time to consider the plea agreement the judge recess until three pm that afternoon so he could have more time to speak with his lawyers at three pm that afternoon he again refused to change his plea  is on that monday as when he was represented by pierre no that is the monday before trial he was repertory was already represented by the public defender represented by the public defender that plea negotiation happen with with the public defender's office and everyone  believed that according to his pro se filings that he was going to change plea that after that morning and then again that afternoon he did not at about three thirty on that monday is when the government began every attempt to obtain the tuesday of the two hundred pages only six of those pages were used at trial v's pages reference the defendant's contacts with united states immigration and all of those contacts were disclosed in the initial discovery that was produced april nineteenth so rough how are they disclosed they were disclosed in reports of investigation it indicated that the defendant had two previous times once tried to enter the united states in new york and was denied entry once he tried to enter united states or toronto canada and was denied entry it was also an order of removed from two thousand and one and then it was a copy of his french passport all of that or the defendant's actions and as your honor judge marcus alluded to he was aware that he had this this contact with the united states immigration before now let alone in the discovery but because of his own actions but then also these were the documents from the alien file which we used to prove up that he had previously tried to cain status here in the united states me ask you two questions about this one when did the government does the record reflect when the government sought the alien file from the administrative agency we began that monday the record we indicated to the judge middlebrooks in the district court on wednesday morning that transcript is docket entry one sixteen and begin the you asked for it on monday got a tuesday night and turned it over tuesday ni actually originally in the f b i s possession we are working our case agent was from diplomatic security services it turned out that the file was with united states comes customs and immigration services and then we had a witness from u his content and i want to go back to a question that i asked in judge asked again i want to take your time and tell me in particular what was it specifically that was discords the night before in the six pages you used that had been turned over in discovery a month earlier to the defendant by your lights that yes your honor in the reports of investigation it had disclosed to the defendant that he had an order of removal that was dated june eleventh two thousand and one that was the government's exhibit for another report an investigation he had a denied entry from march twenty ninth of two thousand and six where he was denied entry when you try to enter the united states in toronto canada that was government's exhibit five and another report of investigation that was again delivered on april nineteenth two thousand and sixteen was another denial of entry in new york city and that also what was the date on that that was april twenty ninth two thousand and nine he tried to enter in new york city if that was a separate denial of entry erects different from  the march twenty ninth two thousand and six where you want to exhibit was that that was government's exhibit six a and attached to that was government exhibit six b which in conjunction with is an album trainee york city it was a notice to detain and deport mr body young and then finally what was the date on the notice to detain and the poor april twenty ninth two thousand and nine and then finally that was six b that was six b and then finally it's government's exhibit six c which was a copy of the defendant's french passport which he tried to use to enter the united states so those were the materials among others that were given to the defendant on the night before the trial those are the documents to support correct correct now with those materials in words or substance given to the defendant earlier in discovery rights it was given tell me how it was give a good and when it was given it was given on april nineteenth and it was given part of it was in a general packet of discovery the prosecutor made available proximately two hundred fifty pages of discovery in that is well your honor i want to be clear about this  julie whole referenced previous fraudulent passport application by the defendant that initial discovery also had those previous applicant i'm just i want to be very precise and specific about my question of course on april nineteenth did the government turn over in words just options the order of removal june eleventh two thousand and one what became government for right and did you turn over the denial of entry on march twenty april nineteenth that outlines the substance of this you agree you didn't give the document right and then give the documents that you're saying you gave the substance of what the document showed and is all of it and one i believe that two reports from diplomatic services of the department of state that summarize the substance of what was in the actual hard copy of the documents discords the day before the trial nineteenth discovery turned over by the prosecutor to the defendant it's cite me to the record so i can look at absolutely your honor it is docket entry sixteen which is the government's first  discovery order to be clear that response was filed on april twenty first but it says in that response that that discovery was produced on april nineteenth defense counsel original defense counsel mr andre pierre came and picked so certainly in our standard discovery or response we indicate to defense counsel that all of this information that is produced may be relied upon oh good you understand the questions we're asking is did you refer specifically to the items you introduced into evidence no we did not refer specifically that's that's correct or that was judge marcus's question i'm confused mr stretton maybe you can help me yes the claim of the defendant is that these materials were turned over so late in the day that they couldn't come up with five witnesses who would have corroborated the defendant's account one of your responses was well he knew anyway but that isn't the really the question that both judge jury and judge and i are focusing on what i want to know is whether the when you made your first response when you made your discovery responses on the front end of the case to the defense attorney and said here's this stuff make of the what you will was included in the materials you gave to the defendant in a parole the reports from the diplomatic service is of the department of state that reflected in summary for the order of removal june eleventh two thousand and one the denial of entry on march twenty ninth two thousand and six the denial of entry on april twenty ninth two thousand and nine the notice to detain in the port april twenty ninth two thousand and nine and a copy of the defendant's passport yes answer the question is absolutely yes the copy of the defendant's passport obviously was not in there but it did say the defendant had a french passport so in seven substance the answer ok so there was a summary of everything and his statement that he had the french passport but that was not th scored he didn't actually have a copy of the french passport erect and this was disclosed in the first response on april the twenty first it was actually produced on april nineteenth the filing was april twenty first but yes all right you can go on with continuance too because you just turned this over so that and we had we believe that there was a potential resolution of the trial should the defendant have more time possible a possible to continue twice before as judge marcus alluded to he filed the pro se motion alleging violation of his speedy trial rights in that motion he indicated that he had told his previous defense counsel to not file a motion for continuance under any circumstance judge middlebrooks found that to be puzzling in the least because the defendant was present at the first motion at the first calendar call when defense counsel asked for the motion to continue in defense and the defendant didn't do anything and so that was part of i think the end irreconcilable differences or the defendant at this point said i never told my previous attorney to follow which continuance and i want a prompt resolution of my case that was at play  think that was a play is awesome he's in jail now serving that's correct your honor and there was an issue with obtaining french interpreters that judge middlebrooks alluded to that made scheduling a little more difficult and he did not want to continue the case another time so french interpreter for french witnesses interpreters your honor you had to be to throughout the entire trial where were the witnesses brought in from so most of the witnesses were local there was an individual from georgia department of motor vehicles where the defendant had obtained a georgia identification card he flew in from the atlanta area and testified as to the process which georgia utilizes in order to verify someone's identity to obtain an identification card other than that the witnesses were local with regard to this file there were some indication that maybe an f b i agent and georgia had the alien file early on but what i'm hearing you say is it was given back to customs it originally it was with the f b i in georgia where the defendant was originally arrested when we sought to obtain it that monday evening and actually obtained it tuesday it was in the possession of united states customs and immigration so i'm sure part of this is because you thought he was going to play but you'd already seen him twice not play so why don't you well i don't want to say why you don't get the fall well before this i asked for it and you're certainly right we did believe that the defendant was going to plead because he if we always believe that in every case and he already had two times he said he was going to play it he didn't so you already knew he wasn't really going to play possum he said he was going to plead on the monday before trial and he had filed this process a motion saying i'm willing to plead to count one and i'm not guilty of co two and that was the plea that was offered to him i know but that's all before monday of trial the point is you don't know about this why don't you get into law and you don't know he's come play he's fired his lawyer because he says he's trying to get whole i need your help yes do you agree or disagree with the language of the response that was filed on april twenty one with the language i'm sorry can you be more it did indeed the government gave you their give the defendant notice on april twenty one specifically about the order of removal dated june eleventh two thousand and one the with  nine and the french passport there was reference to these events in the government's initial discovery that was turned over and i would refer the courts to dr entry sixty seven which is the government's response to the defense motion for new trial in that response the government attaches the reports and we have said it was in docket entries sixteen in the first response which was turned over on the nineteenth and mailed on the twenty first if i heard him right well that is to say the diplomatic reports from the department of state which reflected specifically each of those dates for each of those items the judge hey just related that would be the initial discovery order yes was it in the initial discovery order did they tell you in words it did give you the documents but they summarize the content of the document and said here's what happened laying out the five items i might when i pick up documentary sixteen which i can assure you i will i'm going to look at it and will i see when i look will i find one two reports from the diplomatic services and two will they reflect in summary for the contents of each of these five items the reports why i mention documented sixty seven is because i believe the docket does not include the full discovery it's just the initial discovery response the filing by the government but not the initial discovery the reports are actually in dhaka entry sixty seven and one example when was that turned over to you that docket entry sixty seven these reports are the initial discovery that was turned over seven days before wrecked and show they file oh i've done this discovery here's what we've done they may have turned over the documents but nobody scanned dan what they turned over and april nineteenth is that what you do correct my going to file trial exhibits five six a b c in this record right now not in the docket this was before the requirement for the electron i know so we worked on that and family our courts are has directed just a southern district because this is the only place that does this to make sure that they cannot take anything out of the courtroom unless they give an electronic copy of it i mean it's bizarre to me that the defense bar let's government take home all the trial exhibits that order to now pretty clued everybody from doing that but you're right it didn't become affective i worked on this for two years until december and november last year right correct ok so the problem is all o charla talking about i know what you're trying to tell us in the motions in a trial they did attach a few other records so we were all back and see that correct we don't have the discovery we don't even have the trial exhibits in this case is what you're telling me correct and and while the i find docket entry sixteen there is a docket entry but it i believe it will just be the government's filing they have filed discovery not the actual discovery itself docket entry that did you get the diplomatic reports on in that first response my point being yes they make reference to it but if you have the answer to my question is yes i just i just want to know where we are mis hold did you get on the front end of the case a summary from the diplomatic services in two reports that told you in words or substance order of removal june eleventh the nile adventure in march twenty nine denial of ventry april twenty nine notice to detain and deported april twenty nine and a reference to the fact that he had a french passport a reference to the fact that he had a french passport yes the reference to t wo thousand and six refusal of admission states the consulate confirmed subject the rest of march two thousand and six and subsequent deportation that's the extent of it with regard and then a few pages later the report says the d h s automated targeting system passenger shows an inbound flight by subject in two thousand and nine of arriving in new york about the order of removal june eleventh two thousand and one that i i don't believe that was summer or that was made clear in the reports my my point being that there's not as there's not anywhere in the reports where it lists out these are all of the instances of entry  referenced to in what is reports that include a lot of other in for myself i may be clear on this so we have we do not have the hard copy of documentary sixteen we have to go online to find to look at that will i find either a hard copy or if i go electronically can i find that yes and that will include some of the reports contained in discovery that the government prefer to get some of reports with a diplomatic reports that reference these transactions all they contained in docket entry sixty seven report yes when did you get that when it was dark entry sixty seven entered or when did we when did you receive the materials these materials in docket entry sixty seven were turned over in initial discovery that the public defender's office received august tenth seven days before the trial started just pages we've got naipaul and these items are embedded in different documents so when i call a tension i mean that would be the argument i don't know whether it's a good one ok so you're trying to say the government  the district court air tonight exhibits one through six a b c but you've got the bird here and you have put even the trial exhibits in the record is that correct the records were filed or the exhibits were filed as part of the briefing in this case ok but they're not in the record per se if i went and looked at what was it measured at trial you know what touched them to you but not in the electronic record they were touch the defense's brief for the if i turn to the two of you and i say to you within ten days i want you to file a supplemental hard copy and make it part of this record what was disgorged in the first response on april the twenty first and then docket entry sixty seven can the two of you agree to do that is that something you could do greta put together for us and submit to us to make it part of this record so we can find in a single place at a single time the contents of what was disgorged on round one and round two round one being the first response of discovery april twenty one and the the exhibits are in the appendix the defense file so with the exhibits four five six a b and c we already have except for six b because the government was unable to find that after trial it was presented to a jury and it was made part of the record but the record doesn't reflect it because the government maintained it didn't leave it with the court and the government lost it is that the essence of it that's my understanding ok that's why we have the rule that the government can't take it out of the but the problem is what i want is what both sides agree not just what some attaches to their brief what both parties agree is the record and this case of trial except right so to make it clear i am directing both parties the government and the defense to produce within ten days of the two day the following materials both in hard copy online first the materials that were disgorged by the united states on april the twenty first or on or about the day whether it was the nineteenth of the twenty first what he said mr stretton said were contained in the first response and what he characterized as already being there in docket entry sixteen and second what was presented in docket entry sixty seven i want to see the diplomatic services reports is really what i'm getting that and the exhibits it's as simple as that with that we thank you all thier efforts and will move on to the next case