hear me yes witnesses detective monica and agent yoder in violation of mr hurd six of them and it's to present a complete defense and to confront the witnesses against him the testimony of these two witnesses was crucial to mr mr herts theory of defense is your heart's happened during the course of the trial after the cross examination of these two witnesses that was unanticipated you know in the way of late discovery or in the way of unannounced witnesses excedrin in other words what i'm trying to determine here what was the specific reason that these witnesses needed to be recalled and to the extent that the questions were asked already on cross examination why did these witnesses need to be recall discovery what changed in other words the it we did the government's theory of the case changed the government's evidence changed as to what was he anticipated that the government would present during the trial as it's theory of the case and it's evidence in support of the theory curry elicited on cross examination for detective monica was that actually in fact there had been that nd there had been two buses and the detective monica had boarded the for response and had boarded the st bus and the nd bus and on the st bus about their timing of their investigation of that st spots which was not originally part of the government's initial theory the government's initial theory was that he had been on the host a possible time and he wanted to to  good question them based on the timing evidence presented by mr theory regarding this mr hart's orting of the red line boarding of the rd street bus so that he could establish that that agent yo identify mr hart as the suspect with the same characteristics the money in his pockets the the body language that he saw that he testified to witnessing on the host at bus the the  sential point was that mr theory had not yet testified with a pretty good information as to when mr hart was on the bus so agent yoder and detective monica could no it could not in fact testify as to information not contained in pretrial discovery that's what i'm that's and i'm sure you suggested is somewhat trial by ambush that he didn't have any idea what these agents were officers were going to testify to before they actually hit the stand and uttered the words did he say he was on the bus but he was not aware he was not aware of the the precise testimony that the government's many specific testimony that the government was going to make with government wasn't actually aware of the fact that there was a six that mr her boarded up and he says what the record says the record says that the government was not aware that mr hart was on the rd street at all and that the government or that the government was going to testify about the  sense of trial and nd what effect on that theory do we find with the presence of his fingerprints on the demand notes for both of the bankrupt he does talk about the questions he wants to pass on this is in the record on volume three as is the trial record at pages eight page eighty nine and ninety one  nd we may have lost judge ripple for a moment judge ripple can you hear me those a map in the in the courtroom we can hear happen to me when i was presiding a few weeks  i'll ask her to pick up again regarding how clearly this theory was articulated and the effect of the fingerprints on the school thank you absolutely  boss the court acknowledged as did the prosecution in the trial transcripts that in that scene that there is no testimony that mr harding detective monica were on the bus at the same time so miss mr hart was therefore unable to persuasively make the argument that he wanted to make that while he sat on the rd street but as mr detective monica boarded the bus and did not identify mr hart as the suspect they're still are in possession of the stolen money and he was unable to argue that while he was on the bus at the same time the agent yoder investigated the sixty's pulled up behind the rd street bus or investigated the rd street area and was also unable to identify identify mr hart with with the stolen money and because he he was unable to ask these questions he was unable to persuasively put that in front of the jury and in his closing argument the nd thing that i will very briefly touch on since i'm running out of time  in order for this court to overturn the evidence your exclusion on the grounds that since i'm in a violation it's not that the remaining evidence must be insufficient to support the jury's conclusion that strickler view green cited in my paper as it's the taken as a whole the favorable evidence could put the whole case in a different light to undermine the confidence in the verdict that's come on the bell say it in our papers here the government strongest evidence is that in this case was that mr hart was found in possession of the stolen money with a g p s tracker embedded on the holes hole stead boss if mr hart had been able to provide through the testimony of detective monica and agent yoder evidence that he had not them possession of those the money and money the whole time in other words that he it found the stolen money the whole his would have put been put in a new eight somebody claiming that theory is very difficult for me to reconcile with his fingerprints on the de ma compulsory process was violated is to show no reasonable likelihood that the testimony would have affected the judgment of the trier of fact not some different light not some question in which we would submit that it isn't even here because there were two robberies of course was similar to the defendant's fingerprints on both robbery notes the defendant the c t a records which the defendant had prior to trial showed that he boarded the c t a within moments of both robberies that he fit the description of both robbers and that in the nd robber really where he had the tracking device he followed the exact train the exact location that the tracking device went and then ultimately was with labels i think i was and i think i was thinking about that the news report where a doctor was appearing in court during an operation or something but forgive me and then he had that that the defend had the records on the c t a records and mr thirty the the c t a a custodian of records was on the government's witness list and this was all before trial and the confusion wasn't the name of the buses the government had thought because we had the records of the sixty it turned out to be the rd street bust because we had records that defendant boarded one bus after leaving the c t a line we assumed that that bus traveled along rd because that's where the tracker went and turned on a hostage because there was no indication that the defendant from his c j records had boarded any other bus so that's why we thought it was one bus what we learned from the defendant himself we knew from the day of the operation from the day of the robbery is that he boarded that six what was the rd street bus with his c t a pass but gotten off that bus and then you know or did right away presumably from the tracker evidence hostage street boss and that's where we located him so he had all the records we had and he knew how many buses even are but all of that is really an aside to the fact that judge alonzo district court judge here played in order it care provided inordinate care to this pro se defend it he spent a long time as we detailed in our brief asking this defendant to provide the basis for which he wanted to recall these witnesses at no time did the defendant suggest that his theory was that when he was on the rd street bus which the the record showed he was he didn't have the track or any found it afterward and i would i would suggest that the questions he did ask and of the witnesses suggest the contrary theory he asked he says he asked agent lover nick you tried to ask it was overruled the only reason for stopping re bust is that it was getting transmitted with the tracker right he spent a long time asking detective noid moe tika several questions attempting to establish that the reason that that detective boarded that sixty three rd street bus initially was because signals from the tracking device indicated it was aboard that bus the theory that he was presenting to the court was that there was something going on here because the tracking device was on the  street bus that's why detective much ordered it and yet when he boarded that buys he didn't pick them out as the robber and yet when he boarded the hosty bus he did then was all available for him to make an argument it was even available if he wanted to to make the argument that the tracker wasn't on this bus and was on the other bus he could have made all of that those arguments because it was their was nothing that any of these witnesses that were going to get him that was going to help him here in fact  detective had already testified he boarded that bus and he didn't see the defendant the record showed the defendant apparently was on a rd street bus and both agents woke vote voter pronouncing his pronouncing his name and agent lover nick both testified it was agent boger that had that special handheld device that could narrow in on the track or he was driving a car with agent lover nick in it and the suggestion that he was running down the street with this handheld  tracker is just not supported by the record and both he and agent lover nick while in agent voter in particular test about under oath that he didn't get out with that hand held the tracker until he got to the to the hostage stre so there's just no basis in the record to suggest this theory that agent voter determined with a handheld tracker that it wasn't on the rd street boston when the defendant was on that bus this is just it's just kind of tilting at windmills at this point and it all kind of goes down the drain when you look at the standard that the defendant has to meet which is that all to me or to reality that there is some reasonable likelihood that the testimony would have affected the judgement the in that the district court here acted arbitrarily which again the record before this court was that the defendant tried to recall nine witnesses tried to delay the trial to get daily transcripts and offer basically no basis to get to delay this trial to recall witnesses so on the basis of the record before the court we would rely on unless the court has any other questions we would rely on our brief and ask that the court  the these were all folks who were called originally as government witnesses called yes yes so i mean different judges manage these the sort of question and in different ways some would if a defendant wants to basically put on a defense through cross examination sometimes around into the scope objections and the judge will say you can recall in your own case if that's what you want to do i gather in this case mr hall was given a fair amount of latitude in its original cross examinations he was your honor i can't say that there was never beyond the cross beyond the scope because i don't recall if i stand here but what i can say is i don't believe there was any beyond the scope ever there was minimal if there was any but if there was any i i certainly don't believe that it went to this area of inquiry he was allowed recross is and other judges would just take the approach  i don't think he was ever present prevented if he could ask a a proper question any did ashow counsel who in front of the tenet made it clear that he had power subpoena but he  e if he ever did it it feel pretty strongly it wasn't this kind of area of inquiry and judge alonzo definitely gave him leeway the main problem he ran into was asking appropriate questions questions that were legally appropriate and the other problem he ran into and this is why i can't remember because there was a lot of objecting but he really his main defense was that there was not subject matter jurisdiction here and he tried to bring it up every way he could detective monica it was only it was only when the government really raised the objection saying that they had communicated with with detective monica and that detective monica was actually in wisconsin on vacation and that the court changed its