good morning i'm jon rhodes from the missoula office of the federal defenders of montana i represent ricardo cruz i'd like to reserve two minutes for rebuttal reasonable suspicion cannot be based on age of granada those literally incredible testimony well it's also let me just jump you right there it seems to me the premise of your entire argument is that the district court was required to disbelieve we're not zero in every respect and i don't know what authority there is for that proposition that that the district court has to disbelieve one hundred percent of what eyewitness says because there are some problems admittedly but what's your best case saying that that's a requirement for the district court to disbelieve everything st is the supreme court decision in andersen which took talked about implausibility an internal inconsistency we also cited in our briefs the thorn case from the nd circuit that talked about appellate review where the district court did it based its credibility determination the beaner the manner the behavior the personal observations of the witness but instead you can look at the substance of the witness's testimony both in the transcripts in the reports and there's an explanation here basically i'm oversimplifying but basically said listen i signed off on something without really paying close attention to it and once i realized it contained mistakes i fixed it so why can't the court credit that based on demeanor or plausibility or everything else that was one of many in consistencies and with respect to that may th report your honor ajor coronado told the judge i wrote something down for agent le page to prepare this report which i then signed three times and i didn't read it and now everybody agrees it's riddled with in consistencies when i asked agent granada where the note because that was the one opportunity to obtain extrinsic evidence that could be used to gauge his credibility and again he had told judge christensen he had written something down for agent le page to prepare this report which he signed but didn't read and aged coronado emitted there were no notes so that was the one opportunity to obtain the extrinsic evidence and it wasn't available with respect to the extrinsic evidence look what happened here agent cantu comes to the scene he ultimately as best as we can mirandized and arrested and transported mr cruz to the station house there's no report from agent cantu despite all those constitutional moments what is what is our standard of review the district court's finding that renate was credible isn't that for clear absolutely you're ok and then go ahead that that's ok that's what i thought too when there's also no report from agent solomon and he's the one who is best we can tell did the canaanite stuff so he's at the scene again it's another constitutional moment there's no report no testimony from him it's just not the excel aerated sped away that's not in the may th report that's not in the june st report and that's not what agent granado testified to at the suppression hearing in august so that's one inconsistency that goes beyond the may th report regarding the driving behavior of mr cruz also with respect to mr cruise's approach doesn't may mention the vehicle approaching a jerk or not it was pretty patrol vehicle at any sort of rapid accelerated speed doesn't say anything about that that wasn't mentioned in  hearing testimony from agent bybee who again it just interviewed agent granado to prepare for that hearing it's not mentioned in agent granados june st report then all of a sudden at the august six suppression hearing ajor coronado gets up and testifies that when this vehicle was approaching from behind it was approaching at a high rate of speed so it's just not the may th report that's got all these errors specifically errors with respect to the ratty allegedly erratic driving behavior of counsel my and recollection was that the report of the agent said is at the hearing for the st time major granada testifies when the van passes him it accelerates at a high rate of speed on the same road there on then the van turned off onto another road and that's when it supposedly sped away so fast that it kicked up this cloud of dust and agent grado was not able to see the van because of this cloud of dust so that part of the testimony is consistent with reports after this turn but it's before the turn where mr agent granada is literally every version he presents is conflicts with another person but if that incident that you've just reviewed is consistent and the judge wants to credit it when that be enough for reasonable suspicion no because ager coronado is so self contradictory he's just not believable and again we're not that wasn't the premise of the question the premise of the question is whether if that were believed this fish if  it's my question is if if you believe a jerk or not oh it's sufficient yes i would agree with that the point i was starting to make is there were so many in consistencies from the beginning to end starting with the driving behavior starting with the gun or next to the gun where he says he told me i took it out and put it on the floorboard of my vehicle his patrol vehicle which was a marked patrol vehicle then he tells the judge later oh i put it right back in i'd left it in the van with respect to the k k nine sniff which is reports he claims in his june st report and it's also in the may th report he's the one that requested the canine snuff yet he gets up and testifies and he done says i didn't request a canine sniff and i don't know why it was ordered so you have somebody in all these constitutional moments that's conflict himself and he's so contradictory he just can't be the basis for reasonable suspicion you know one of the one of the troubling aspects of your argument is i'm having a very difficult time in trying to figure out where where we would draw the mean how do we sitting here not having observed the witnesses testifying not having been present at the critical moments in court draw this line and say well basically the district judge missed the boat so badly that it deserves a reversal that's why i referenced the thorne case which said when you have transcripts and that we have so have these reports as well as the women are hearing the transcript you can look at the substance is the credibility determination wasn't based on observing the witness which i know is some extended have to ban because there were explanations for many if not all of the inconsistency is in changes and when a person gives that explanation we see this regularly in immigration cases there contradiction internal inconsistency the person is asked to give an explanation and then whether to believe that explanation ordinarily is for the finder of fact because they are there so why would this be different than the major coronado explained the may th report basically my phrase good enough for government work i'll sign a report that i didn't write he never explained all the other in consistencies he never explained giving one answer to me about what he did with the gun when he found it in another answer to the judge he never explained well i wrote something down i gave notes to le page so she could write this report for me then on where you left the argument which is the statement that the credibility decisions in the case was not on observing the witness it was one hundred percent on observing the witness and this case in terms of the credibility decisions that were made by the district court if you look through the transcript you a fee that in this case not only did the district  court judge listen to this witness for over an hour at the suppression hearing but the court itself actually engaged in direct questioning individual crush questioning with agent granato if you look at the transcript or the excerpts of record that are between ninety one and one hundred and six you'll see that the district court judge himself actually asked almost seventy questions direct back and forth with age and are not zero so it wasn't just a matter of sitting there listening to the attorneys cross examined and conduct direct examination but it was the district judge himself who sat five or six feet away and engaged in this kind of questioning and could get a feel for no one is defending what agent granato did here from the standpoint of the practice of signing a report that he did not thoroughly review that's terrible practice no question about it and you can see when you look at the judge's order that he was troubled by that too and that that that was that that was a significant error or a mistake on behalf of the agent coronato but  considered that mistake and he still found him to be credible and i think that is the biggest issue in this case that makes it stand out from the other cases where the courts found that the judge did in fact commit clear error in this particular case the the mr cruz was able to cross examine agent granato he was confronted all of these issues all of these discrepancies were brought up and were placed before the district judge and so the district judge knew he was fully informed he probed into those issues and he still found that agent granado was credible and in issued the order suppressing the evidence the reason that i think that is particularly important is because it brings us back to the credibility decision that set out in andersen which has been cited by the appellant as one of their key their  cases here it talks about that of course findings factual findings are reviewed for clear air but when you're talking about credibility of witnesses there's even more greater deference given there's even greater deference given to the factual findings because it says only the child only the trial judge can be aware of the variations in the demeanor tone of the voice that bears so heavily on the listener's understanding so that's why we point to regularly to that but beyond that your honour's the other thing that i want to point out is that a lot of the alleged contradictions that have been identified in the briefs and frankly here this morning are actually i think that they're exaggerated and some of them are taken out of context and i will start by just pointing out two issues that have been brought up in the briefs and one of them was reference here this morning the appellant brought up this morning and in his reply brief at page ten that the government fails to recognize perhaps the most important inconsistency in granada the suppression hearing testimony what he did with the gun st he said he removed it when questioned and then when questioned by the court he said he didn't remove it the problem with that is that if you read the transcript that is not a fair and accurate statement of what it what was presented in the district court when we were st answering or asking the questions of ada agent granados it was a walk through step by step of what happened at the stop that's the point that he's explaining to the district judge i took the gun out after i found it i secured in the floorboard of my car then i put it back in and i didn't take the gun with me at the end when the court brings that back up and the statement that is quoted to you saying then he says he didn't remove the gun if you look at the cut the context of that transcript you can see the district court judge was specifically asking him about the end of the stop when agent solomon in was going to conduct the canine sniff that's the context of that did you remove the gun no i didn't i left it in the back of the van for the canine sniff to find or where or during an inventory search so that's not the i think that that's been exaggerated there's another one where it talks about in the court's order that the court clearly didn't understand because it stated in the court order at your fifty four dollars that it referenced agent granato testifying at the preliminary hearing as well as the suppression hearing that is just an unfortunate clerical error in the judge's  order and when you read it you can see that what the judge said was it's consistent with his testimony at both the p c hearing as well as the hearing on the motion to suppress he simply meant instead of his but when again if you read before and you read the pages that follow there's no question that the district judge knew that agent coronado was not testifying at the preliminary question or at the preliminary hearing so there's a lot of these statements that are referenced as being  everything conflicts and everything is then consistent when the reality is there there are not truly that many and consistencies but even if there were the district court heard all of these issues and determined that agent granado was credible and when you look at the decisions that finding was not so implausible that it needs to be set aside the appellant has identified that the thorn decision out of the nd circuit is one of their their best case in support of their argument today but the problem with that is that was entirely different facts in the thorne case the the district court judge had st found that the witness was incredible it went up for review it was remounted then the district court without conducting any additional hearing handed down a decision finding that the witness was credible so that was the issue in that case is that it was a total flip flop without anything in the record to support it and that's not what we have here and the other thing that the current court points out is it does talk about the substance of the testimony being able to be reviewed by you but it also says the court's observation of witnesses demeanors quote commands great deference so it specifically also references that when district court judges have the ability to sit there and watch the judge and watch the witness and make decisions based on that that that should be given great deference your honor it's the only thing i would point out with regards to the st issue that out at play in this case is that yes there were certainly mistakes made but not every mistake should result in suppression of evidence the issue here is whether or not his th amendment rights were violated the district the district court judge knew that was the issue it prob everybody got the ability to look at those discrepancies and determine that there was no violations the last thing that i want to reference for very briefly is simply as it relates to the nd part of the arguments presented in the brief which is the overall reasonable suspicion for the stop i just want to identify that  a canine search remember his june st report a jerk or not oh says that he thought it would be beneficial to have this canine search but the response from agent coronado to the court is no i don't know why he was directed there i just found out that he was going there that morning that's another example of a constitutional in significant discrepancy the court then continues this gets to the gun and in if i have to ask you you keep saying that every inconsistency is constitutional i don't understand that when there's a drug a drugs canine sniff of a vehicle that's the constitution well i know better but where that's that's fair enough but it just sounds like you're attaching the word constitutional to the inconsistency which is just an inconsistency i'm just saying that's an inconsistency that touches on a constitutional moment the court continues in any event once you identified it located in a firearm that firearm remained in the vehicle did it not intake until agents saw men in conducted his canine search or not those answer that's correct ok would you clarify for me i thought i proceedings credibility determinations that aren't in the district court order there's nothing in there about i sat in observed i interacted i questioned i questioned at length a jerk or not  i saw his behavior i saw his demeanor that's all true the questions are in the transcript and the judge was you know alive and well looking at things right but the judge based credibility determinations on the supposed consistency between the may the june st the probable cause and the suppression hearing testimony that's all written word the judge didn't base it in this instance on his human interaction read on the witness and that's the point we're making and this idea that we need to have some point case i just don't know where we're going to find it on point case with in my opinion using your word sloppy that's a nice word sloppy