rebuttal time i'm going to try to ok all right and you are mr hamilton i mean ok very well please proceed good morning may please the court my name is josh hamilton and i'm here today i represent  the government knew that and rather than allow the jury to make a reasoned decision as to guilt or innocence based upon a fair presentation of the real facts the government overreached and it overreached by injecting harm by injecting some very prejudicial other act evidence into this case that had no place at all and in particular we have the meth use which was just completely peppered into the case by the government ad nauseum it was discussed in the opening it was discussed in the closing it was discussed i think with four of nine total trial witnesses and the way it was used it wasn't used for any proper purpose it wasn't connected with the case in any material way didn't provide any substantive or contextual nexus it was just another bad act that they had done and yet the government just continuously brought this issue up the fact that they had used methamphetamine at one point during the sequence of events halford nothing to the story whatsoever but yet that is what the government focused on they didn't provide you tried case i did was there an objection to this there was there were there was an objection to this specifically but nevertheless the way that it was used was just wasn't to do anything other than to evoke a visceral reaction from the jurors the government mentioned matthews in its closing it did yes and the way that it did is telling because it the government had originally tried to say that the meth use was probative as to see the lack of nervousness or fear or also i guess absence of the arrest as it pertains to this carpenter but the way that it was used wasn't even for that point there was evidence that there was singing and rapping to music and joking about which is far more probative to a lack of nervousness or fear than the fact that they ingested methamphetamine but the way the government used it was saying these men these people use methamphetamine while there's a person tied up sitting in the trunk of the car in the front of the house in other words these are terrible people these are monsters people and you should use this information as the as the government did highlight it during its closing this is evidence of guilt this is a bad thing they did these are bad people but if they've been playing bridge inside the house while the guy was tied up the government could mention well that's certainly far more probative of the met had nothing to do with this case whatsoever had no place in it it had nothing to do with the sequence of events playing bridge is not a bad act it's not a crime it's not a something that evokes emotions in a jury the way that using drugs particularly methamphetamine does but that wasn't even the only problematic evidence that the government relied upon in its case what was even more troubling and far more so was the stolen marijuana theory and that wasn't even presented by the government pretrial as something that was going to come up in trial they said we need to provide context for the motive of what happened to a series of events into motion and that was the cartel in mexico had perceived that the victim had stolen marijuana from them or was responsible and there was a fifty thousand dollars bounty on his head and yet at trial with the government focused on was that actually put on a veritable mini trial on the issue that my client actually stole the marijuana and that was something that first of all just plainly not true but there is no evidence to support that it was it was just baseless conjecture unsourced hearsay it was literally word on the street and yet the government highlighted this at nauseum during its closing argument and specifically said bad things happen when you steal marijuana from the cartel in other words they're making again there's no evidence that this actually happened it's that word on the street it's it's has no foundation it's highly speculative and yet the government is arguing as though it's gospel truth and these are the more it makes the team as though he is an absolute monster not only is he a thief not only is a liar not only is a master manipulator that would put this entire sequence of events into plant into play but he is somebody who set up his own best friend and deliver him to an uncertain fate at the hands of the cartel in mexico for something that he had himself done and that is evidence that the district court didn't even conduct any gatekeeping function for because the government pretrial it said it does it beside the point who stole it or if it was even stolen at all all that matters is that the perception was the cartel belief or who was involved in placing this individual nitro though he was no the evidence from the government was that my client was never even present as far as the actual kidnapping even though he wasn't ever even involved in it and yet that is another at problematic aspect of this case is that the district court failed to instruct the jury that when mr carpenter testified and her out of court statement to the f b i was introduced by the government which directly implicated my client so i had the good the jury was never told that it was needed to disregard that evidence as it pertained to my client and yet that evidence was also highlighted by the government during its closing argument and the law in the circuit is that when a when  joint trial when i co defendants out of court statement is introduced the district court has a suicide vontae obligation to instruct the jury that it is to disregard the out of court statement that directly implicates the non testifying defend in this case my client and yet that didn't happen in this case so as to try to get back to what i think your honor was getting at the quantum of proof against my client was weak it was far from overwhelming and yet the strongest evidence that was a deuced against him at trial of his guilt was either wrongfully admitted or was per se inadmissible against him and the jury was never told that it needed to disregard that evidence and they could put apply the morning my name is john young i represent roxanne carpenter i know that i'm on the right track here with regard to sealing the offer of proof because the government refused to read my offer proof i've never had that happen before but in this case the government knew that it had no business reading that offer proof there was i think still prejudice even though the prosecutor in this case didn't read the offer proof the n e f went out to every other attorney in the case it went out to the attorney meyers it went out to the both attorneys for the material witness angela gonzales so they had my offer proof and they were both part of the prosecution team they were working hand in glove with the prosecution to convict my client every case agent in this case had access to it every other witness in this case had access to it i would like to have had a trial where every other participant in the case did not know my every thought what in this case needed to be under seal i think my best case on that is growling your honor in the gorilla case the government agreed at trial that the offer of proof needed to be sealed it was sealed at at the trial  in the growling case the offer of proof remains sealed on appeal on direct appeal and after the growing case the offer of proof remain sealed after the direct appeal when it was remanded back down to the  to the district court for exactly these reasons if we're going to have this vazquez land of a rule if we're going to have this rule is outside the rules of criminal procedure then i think this needs to be clarified so that i  don't know that there's anything here that's going to help my client i don't know what the remedy could be but i would like to straighten this out and maybe provide some guidance for the next time i've got a dress case this rule outside the rules of criminal procedure  it's inconsistent with twelve b three that motions must be made before a trial that's a list of motions that must be made before a trial that's that's not vasquez landed her the pretrial offer proof addresses not one of those rules your point about the rules are going to be different is there a qualified first amendment right of access or common law right of access of the public to pretrial offers  bench i just i'm not sure i understand why the public's interest doesn't overcome or is more important than your client's interest in maintaining secrecy  matter the presumption here is that the public has a right to know what's going on in court but the public doesn't have a right to know what's going on in my mind of what's going on in my client's mind the interactions between me and my client all  interviews that i do with my client all of the investigation that i do in my case all of my work product in my case i spent many many hours with my client interviewing her and determining what exactly had happened because it was very confusing what happened  once i had put that all together i had to put that together this is not a notice of a defense which is entirely a notice of a defense of something very simple it's just a one line this is what my defense is this isn't offer proof which is is far more complete far more thorough because if i lose that offer proof that is my only record when i come before this court so i have put everything that i have gotten my entire case everything in my file all of my interviews with my client everything i know about my case i' now previewed to the i understand is going to come out at trial but i would like for it to come out at trial i would not like for it to come out pretrial i don't want to preview it to everybody i could preview it to the judge even to a judge outside of the presence of the prosecutor outside of the presence of the co defendants outside of the presence of the material witnesses but i don't want for everybody to know what i'm doing days or weeks in advance before i get to trial and i start doing them that's that's work product what what what that is contained in your offer of proof you believe falls within that if you will put number of secrecy that you believe is warranted in this case that much of it is just standard kind of information that any good criminal defense lawyer would put on right i would put that on a trial and i did put that on a trial but what's what's in the offer proof that that that the government found out from my offer somebody from i offer proof so it's in clerks record one of the six my offer of proof was full of things that the alleged victim in this case did not tell the government he did not tell the government that he stole marijuana from the cartel and that's why he was in the trunk of the car he blamed it on roxanne carpenter and her friends he didn't he didn't tell the government that he blamed marijuana that he'd stolen on the bikers down the road and that's why he was in the trunk of the car  i put in there that fastow zombie flask has talked to the owner of the marijuana that roxanne carpenter my client had also talked to the owner of the marijuana that cartel members had showed up at roxanne carpenter's house angel solace did not tell the government that law enforcement appeared at roxanne carpenter's house unrequested and angel gonzales did not talk about that there are a lot of things in that offer of proof that i put out there i don't want to spend because i don't i don't know what the remedy would be in this case i do want to touch on the pinkerton issue can i just have one question before you do yes so the government says that it didn't read your offer of proof do you have any reason to question that well i believe them ok i believe they knew they had no business reading that offer proof ok and you also say that you were prejudiced because government witnesses could access the information do you have any evidence that government witnesses did access that that would require a hearing and their attorneys would need to be cross examined or go question about whether it went out on the n e f to those attorneys angel gonzales was represented by two very competent attorneys chris kilborne and saul were to two of our best marks and there's nothing in the trial record of where anybody asked the witnesses if they had previously read your offer of proof no nobody jumped up and said well i've read it your honor but nobody else did you ask them no i didn't ask them so this is pretty much a hypothetical issue then right because we don't know of a single person that read your offer of proof i know all of these attorneys i'm positive they read it there's  question in my mind they're very good attorneys and they wanted to know what my case was about they were they were representing these people i'm sure they knew what was in their but but as my colleague point there's nothing on the record that sort of that shows that they in fact did read it you believe based on your personal experience with them that they must've done so but if you point out there's nothing on the record that shows that that was a very i'm certain they read it but there's nothing in the record that i could put my finger on where they said yes i've read it ok when did you find out that he had been read by anyone outside of you and your client nobody's ever it it went out on the n e f i was forced to file electronically so that it went to all of the attorneys so i knew when i was filing electronically that i had to do that and that's where it was going well i guess what i'm getting at is during the course of the trial did you have sufficient knowledge about the fact that this had come to light the pretrial offer to come to light all of this work you're done or you were of the i made the pretrial offer myself before trial so i was aware it was it was made no you were in a position to cross examine government witnesses who might have revealed testimony during the trial related back to the pretrial offer co could have asked the government witnesses if their attorneys had relayed information to them and you did know that that would not been pertinent to anything that the jury was deciding it would have been more relevant to this this issue of sealing offer of proof or not sealing the offer of proof but it would have been completely irrelevant to the determination at trial of the facts of the of the kidnapping of the questions by my colleagues  case judge that you asked about really is the comma conic case which talks about the presumption of public ask access to court proceedings unless there's a compelling reason for those proceedings to not be made public and because it's a presumption the defendant seeking sealing or ex parte consideration asked her about the presumption and i think what's clear here is that didn't happen also what's also clear is it was harmless the defend it was able to put on the defense at trial and received a dress instruction and as this panelist noted this morning there's no indication that anyone  in appropriately access that information or used inappropriate beyond defense counsel's speculation so that they're from the government perspective in the case law if you view it there's a if you will a presumption that an offer of proof is to be public unless in this case the defendant makes a compelling argument why it should not be public is that correct that's correct and that in this case no such argument was made that's also correct the if there are no further questions on the carpenter issues then i would turn to the arguments that have been made on behalf of the defendant alaska's first of all actually regarding both of the defendants in this case looking it up each of their issues raised on appeal what none of them are able to overcome is the fact that there was abundant evidence in this trial independent of any guesses google searches for translations for his communications with the cartel as well as mapping information regarding crossing the port of entry into mexico so  overcome the government's position that isn't part however i had also like to address the defense counsel's claim that there was all of this focus at trial on this one incident at kerry hall's house where the three defendants smoked math that's referenced i believe three times during testimony and it's reference the digha the government did reference that during its closing however if you this this this entire offense was rife with drug use so if you go through and you tell it up you look at the numbers regarding references to drug use methamphetamine heroin marijuana during the course of the trial the numbers you come up with is  drug used by participants forty one times that's by carpenter's counsel during opening closing and also by the government during closing like yes exactly in fact part of the testimony was that carpenter had given myers one of the actual kidnappers three hundred seventy five dollars so that during the course of kidnapping the victim he could also swing by douglas arizona to pick up an ounce of methamphetamine there's also testimony regarding the fact that  in two different places in the trial of alaska's had a gun there's testimony that oh oh and vall ask is himself during his very first questions of kerry hall asked about the the evidence at trial about who stole the marijuana that was irrelevant shouldn't have been gone into but if you look at that page forty six on the fourth day of jury trial alaska's counsel is cross examining brian myers and he's asking myers who stole their want to load and meyer says i don't know but velocity has told me that he turned it back over to the cartel so my question is why are we doing a kidnapping if the marijuana has been returned so there's this exchange between velasquez his counsel and myers where meyer says all i know is i don't know where the weed actually went to that's what i know and counsel says so that's a big big question in this case isn't it and meyer says i thought this case was about a kidnapping not missing marijuana and council says it's about missing marijuana do you know where it went and meyer says i have no idea what where the marijuana went so valadez himself is eliciting this testimony and consequently it's pretty hard for him to say that this was because you're prejudicial to counsel a couple points the first is there was not overwhelming evidence as to mr velazquez is guilt that is false let's talk about the cell phones which the government just mentioned there were some text messages and some google searches there was also ample proof that not every single one of these people involved had a phone and that they were all using each other's films as the government although that it would be helpful to me and i suspect to my colleagues you just heard the government's counsel go through a litany of things that she described to your client that she thinks were he brought up the drugs or there were other things that implicated him in the  conspiracy what specifically did she say that you believe is false and where in the record would you cite to contradict what she said come with respect to your client first of all it's the government that was kept bringing up the meth use so the reference is of the verb being a listed by the government there was a lot of let's let's say that let's say that i'm asking you what she said that is not true she tried to contradict that she didn't say the government bring up the mess she said that your client also brought up drugs also brought up these other things that tied him to the conspiracy what did she say that was false they have got the defendants objected to the introduction of that evidence to at and that was overruled then once it's coming out they're cross examining carrie hall about her own mathewson a false statement that she made so they didn't want the evidence to come in at all then they have a duty once it's coming in to try to defend against it but that still not them highlighting it at all that's that was one instance the other thing is i didn't hear her say highlight i don't understand a question where you've been asked what in government counsel's recitation of this business about introducing drug use was inaccurate because they just said that she highlighted that they didn't introduce evidence of drug use they can say as i am and mr of alaska's did you try the case i did not ok so a trial counsel for  k squares according to her a list of the testimony about drug use is that true or not cross examined a witness about her own drug use yeah ok but she he didn't highlight his own drug use and that is what my issue is here today so those two things are not can groom with one another the other thing is about the missing marijuana that the government never addressed that issue at all and it's briefs period and then finally with respect to  if you look at the entire picture of the case the vast majority of the evidence that was a deuced against my client was erroneously admitted introduced and it was either introduced as meth use evidence which really had no place in this trial but more importantly it was this entire mini trial on the issue of the fact that he stole and that there was no private or gate keeping function there is no question that this man was denied a fair trial he deserves a new one and i'd ask your honour's to reverse every man thank you have any other questions by my colleague thanks to both all counsel three counsel government case just argued as the method and the court stands in recess for the day