driven by michele gordon that michelle had borrowed from one of her boyfriends named art turpin in the car was at that point in time of their arrest michelle gordon lied about her identity that she didn't even see the stolen mail in the car although it was all over the place said it must have been there before when she took the car from her boyfriend said she didn't know what on earth was going on with mail in the car lesley with him or said my sister came by my house she invited me for a ride i looked in the car there was stolen mail my sister has a history of stealing mail but i was still wanting to go did not engage in any additional crime is with them or not do anything inappropriate when it came time to go to trial ms with a more remain consistent in her statements which was my sister still the male i w present i knew she was feeling male however the district court was very clear that those facts alone did not make news with more guilty of any crime ms gordon was absolutely critical therefore to prove that ms wood moore had committed any crime his board needed to take the stand and testify that in fact this would him or was part and parcel of the mail that now by the time it came time to go to trial ms gordon had been picked up subsequent criminal activity all of her current federal male staff and she had given birth to a baby she desired to stay out of prison on the state side she was facing a flat thirty nine months if she was still on probation for prior crimes all of her new criminal activity would give her under the state guidelines for thirty nine months with absolutely no ability to be released early she was facing consecutive sentencing on the federal crimes and her greatest desire was to stay out wonderful lawyer there was nothing inappropriate in ms gordon attempting to get this deal and let's hope that ms gordon does manage to change her life around for herself and her young child what was inappropriate with ms borden lying were credible ms gordon was saying on the stand that she was doing these wonderful deals because she had turned her life around was off drugs and was now cooperating with the government however while she sat on the stand she was  asked has anyone told you that based upon your deal with the government the government will recommend a sentence that will put you outside the prison to prison range ms gordon said no that didn't it matters with regard to take a step back the purpose was to bring this testimony from this ordinance demonstrate she's got a real good interest to say what she thinks the government wants to say to say things that will will incriminate  sister and exactly the form of the motivation i'm not sure matters so much as the fact of the motivation so that the fact that she might not ignite allege just how good the deal might be the fact that she might say i don't know that i'm going to get out altogether indeed in her mind maybe the the dish will find that she was had to put in for her treatment program was still somehow incarceration in the event was an acknowledged by her that she was getting a big benefit even if she didn't acknowledge the specific form of the benefits might take there i believe that she was not only acknowledging the benefit and i think that additional critical factor that was sought to be brought out with this evidence which was that ms gordon was still lying under oath before the jury regarding this crime when when ms gordon was asked were these words used to you she said no and they were and having the jury know that she was lying under oath before them about this case was it what was she lying about this or that she couldn't get comparing that to the experts record page thirty seven no one has ever told you that if the government recommends cooperation for you in a downward departure based on cooperation that could take you outside the presumptive prison range  miss me please read all of it you stop reading question how about probation staying in the treatment center where you were specifically suggested that could be a possible sense for you answer possibly and that is a probationary sentence without cause still deal time comma for instance common jail i believe question i believe that it's referred to as home tension the judge page e r one thirty two specifically says you may show that gordon understood that the favorable recommendations could produce a guideline range calling or a probationary sentence instead of a prison sentence and the emphasis is on quote could she understood the fable recommendations could produce a guideline range calling for probation and not for prison now didn't your client going to more get everything she wanted on the record through that four zero three ruling by the judge when he said i don't want to get into the guideline measures of how this is done you can see got everything she's not likely she's she might be coming and expert on the sentencing guidelines but she's not likely to be using the terminology in the same way that of course does and that's why i really pose the question before i like look at the whole thing i still have this  sure that i could say she's lying or say she's not being very forthcoming or or candid but in terms of what she understood i wouldn't be surprised that someone might describe well i got to finish this treatment program and i'm not free to go come and know what's under indirect about and that is a probationary sentence without custodial time for instance in jail answer i believe it's referred to as on tension ok it is not time in prison you know you would have the opportunity to be with your baby at that point i would and you would not have to give up your baby to say nicholas gordon no judge i believe i certainly should ha please the court kelly's dissent appearing on behalf of the united states and one key factor to keep in mind in analyzing this confrontation clause appeal is that michelle gordon the witness that we've been talking about here who's been accused of lying about the terms of her plea agreement had not been sentenced at the time in this room or was tried she was facing a potential sentence and the judge who was going to sentence her it was the very same judge who was trying this defendant was that fact known by the jury no it was not one of the things that really troubles me here is that i really can't figure out i don't understand the justifications for withholding the ability to confront the witness with what she was told by the court i don't think the jury has to be told it's the very same judge and it may be that the judge brown was conscious of the fact that was she was the judge in both and so held i'm comfortable with her own words being trotted out but i thought something the jury knew and didn't have to be told and isn't there something compelling about having a witness who's worms and is it cannot be described as forthcoming in any sense of the word and the fact of least as no i don't remember ever being told these things when the question she's being asked is exactly what the judge told her during the colloquy at a time when you would hope the defendants paying some degree of attention to what's going on why shouldn't the defense be allowed to confront her with the fact that she didn't the judge say exactly that to you and i have a couple of answers for that the first is that the supreme court has said that a defendant is entitled to effective cross examination but not cross examination in any particular means of their choice so what judge brown said to the defendant here was yes you can go into the specific terms of this plea agreement you can go into what this witness expected to receive in terms of the benefits and what she anticipated her sentence would be all of that was fair grounds the only thing judge brown told her she could not do was to quote judge brown's own words during the plea colloquy which was that it was a huge benefit because the concern it would be an impermissible comment upon the evidence and i'll tell you you can come back to i just don't understand what that means i do not understand how that is a comment on the other i think it's a comment upon the evidence this detail telling this gordon that all of the government's recommendations were not binding on her that the government could recommend whatever they wanted the defense could recommend whatever they wanted and she rips not bound to follow it so when  that's not where gordon testified to in response to the question i mean this means to set that up as a possible alternative as you said well i've been told this is a possibility but it's all up to the judge i don't really know what we mean i've i've gone through this several times horton is not and she is trying to minimize the notion that she gets some huge deal by ratting out her sister there are lots of reasons maybe she feels that way and i don't know that she's consciously trying to help the government i don't think she truth she did because that's what the judge told her what the judge never told her she was going to get straight probation but the judge told her this is a huge benefit and i have to assume the judge is doing that so she would get gordon to take seriously the obligations you ha with and what gordon hears and understands is is very much relevant a little more trial and i can't figure out why it is that we're more shouldn't be allowed to use that and that's because the territory was covered exhaustively and i knew that miss gordon expected to have a reduction in her guideline range that it was solely up to the government to decide if she had to fill the cooperation agreement that gordon had to testify in order to get the reduction that straight  sentence user and home detention community treatment or prison which is what happened now keep in mind also that at the time miss gordon entered her guilty plea no one knew exactly where her sentencing range was going to be you can see from the government's presentation that she it could well have been a category six her mental offender which may have taken her out of the zone be a consideration her own attorney said well i think it's probably a category three or maybe a four but when michelle gordon testified no one knew with any certainty what her sentence was going to be the questions that judge brown permitted were entirely consistent with what the judge did in the united states versus this court hell was permissible there was no confrontation clause violation here because the defendant was permitted to explore every possible motivation for michele gordon testimony you know the difficulty with  at first i believe she did and it's at e r one forty four to one forty seven she was asked question do you understand that the government's recommendation could bring you into a range where you might get a seven which was the cross examination of michelle gorton against your one sixteen to one twenty four which is what judge brown told michelle borden when she entered her change of plea the two match but one  to one twenty four i was on that large compound as a matter of fact here a great deal more of the difference between the possible  unsubstantiated we simply don't have that here every possible avenue of motivation for michele gordon's testimony let's fully explore and fully explore during closing argument i just think there's no question that m don't see any basis and the only way to properly set the context i'm reading from one thirty one line rate and the only way to properly set up the context would be literally to engage and a training course on sentencing guideline used a huge benefit outside presumptive prison range just are not that complicated they wouldn't need a discourse on sentencing guideline law for a jury to understand huge benefit outside the prison to prison range those were the words that we wanted does it pose any problem to you that somebody told her as you know they always do that it's up to the judge and she conclude quite often as the questions were put to a yes x y z and so forth but it's up to the judge so she she and she has and since i gather there's something that you wanted to do that you recruited from doing and what were you what was i recognize that you wanted her to to to you want to read what the c things your honor first we did use the words that the court had said and did and after anyone had ever told her these facts she denied it i lost the opportunity to confront her with that lie under oath on the second i lost  clear admission from her that she had been told probation was possible she was hoping for probation she had asked for probation in her sentencing memorandum and that is what she wanted this woman correct didn't have it at that and always went to the fact you might be right but at that time she only had a probability and she had been told and she repeated it's up to the judge the problem that i can understand your concern you think to the to the bigger offender walked away but what we have to look at is is whether or not your client had a fair trial and what preclude her from having a trial because she didn't have the ability to confront ms gordon about the benefit of her plea and about her life on the stand that's what it boils down to we don't know i be what we expected is the benefit of her plea and if you look at the larsen case i think you will see the critical distinction of the prejudice to the government in the light sentence and i think you'll also see that the witness testified truthfully honestly she was pregnant