address the two of them primarily in the times i've been allotted and that's the first issue would be the mexican birth certificate as it's been characterized in our appeal and particularly the our claim that it violates the confrontation clause of the of the constitution on the crawford versus washington the other issue i would like to cover relates the sentencing in the apprentice issue i believe that the record specifically in this case was testimonial in nature because it was a record that was done at the request of the government on the eve of trial that's summarized for search of other records that we don't have before the court but in a foreign country that those records that were searched were done created more than fifty years ago and there's no ability to examine the source of those records based on the record that's before the court nor the circumstances under which those records were generated just so i'm clear on your argument you're making a constitutional argument under crawford you're not claiming that it wouldn't leaving aside the i know you have a different view of the let's just assume that it was probably all properly authenticated that they had all the whistles and bells little ribbons and all the other stuff the of the postal and so on why does it not come in as an exception to the hearsay rule for public record or a vital record under the exception to the hearsay rule well for vital records there needs to be a duty imposed by law to create the record doesn't it say on there that it was done pursuant to the civil law whatever it in fact the citizenship of the defendant's mother is down is illegible as well which calls into question the trustworthiness of the document itself as far as a public records concern under c as a factual findings resulting from an investigation done by somebody in mexico because it can come in against a criminal defendant under that section either so their therefore would have to come in the defense she is the only one with factual knowledge during the course of this trial who knew where mr finn thought it was born except when now when she took the stand on the defense case it was as if she was responding to the government finding this record and introducing it into the case and she was coming up with a story to match the record which had that record not come in she would have told the story that she told in her testimony of how he came that wouldn't have come in it would have come in as a response to the government showing that he was born in mexico through this exhibit that's at issue and i'm arguing now this document mother's testimony to the fact that when we got to put on our defense case that the government had already had introduced this document and that this document posture of appearing to be responding to the government argument that he the defendant was born in mexico and with no way to examine the people who testimonial because it's a it's a summary done fifty three years after the fact of a search of some records that we don't know what those records exactly were by a person in a date of it are the date just before the trial was originally supposed to start in december i also know from things that are in the record by factors that were sent to me and other things i receive that are part of the record but the date of the document itself was just three months before the actual trial took place but i also specialist in our and my appeal that the trial was originally scheduled what even is admissible to the hearsay rule would be inadmissible under the confrontation clause no because there's there's there are guarantees of trustworthiness in records that we know from our own country birth records we understand have both birth records are kept in the united states or certain government records are kept for your argument is not trustworthy or interest where the argument is it's a testimonial i believe that this particular records testimonial it has to be given almost th presumption that it's the monitor because if it says so much about something that happened so long ago without saying at all how the record was produced or what investigation was done even the most simplest of records introduced in federal or state court always comes with some custodians letter sworn under oath that sets forth a more thorough foundation of what records research than why they were searched and how the records are kept and in this case if there is not such an affidavit the affidavit is really just protesting to the fact that it's been signed a couple of times by different individuals if you want to reserve your remaining few seconds sure record shows at pages ninety through one hundred there was a lengthy exchange regarding the hearsay should trial judge moscowitz found that in fact this document the certificate of birth did reflect the activities  reliability that we would want it is the same name the parents names match up with the evidence the trial from the defendant himself it is the same date of birth and if we can step back and look at the combine and you get  if it's presented or prepared any time your trial is necessary necessarily a testimonial document this is a document that is far and away from for example an issue of prior testimony or an issue where there is an interrogation by a police officer something like that that might present more of a testimonial context this is if we if we step back and look at the context it is essentially a it is objective cataloguing of unambiguous factual information that's been around for fifty years and again there's really no dispute number one that this is in fact accurate information regarding the defendant's date of birth where he was registered the mother story at the time of trial was he was born in the united states but we registered him in mexico at my husband's behest we did this in mexico so there's no real dispute about that in terms of this prejudice issue or what the court may look at  a potential harm was there this document really is simply something that the defendant's mother himself said which is yeah we went and we registered it in mexico so there's no real dispute about either the information in this document the fact that it's reliable or that there's really no error when the mother herself is saying this exact information with respect to the census or the suggestion  she was forced to take the stand to tell the story in response i guess i would say i don't think that's correct all along the mother was going to testify she testified it is earlier thirteen twenty six trial this case had in fact as the doctor has been continued several times solely for the purpose of enabling the mother to come and tell her story regarding the the defendant's birth suppose a birth in nogales arizona and all the facts that came out so there's no real big surprise here it's not as if she was somehow forced to testify and certainly the government is entitle to its own force of proof it's admissible evidence none part of the of the burden of proof absolutely on me and we're also entitled to meet that burden with appropriate admissible evidence and that's what happened here i won't belabor the point in terms of recitations or citations to the record but there were there were a number of exchanges with respect to the issue of nine zero two three and that is the self authenticating foreign record you know did were let me the point that  twenty four or one sixty yes your honor it is page twenty four and page twenty five is the english translation of that and you'll see that the translation doesn't fact refer t gentleman signature and then below that says illegible i cannot explain your arm because it does seem quite legible in the same thing where it says this or to begin as you should pursue it to the provisions in section thirty five of the state's civil code in force essence we have several layers of trustworthiness if you will and that's that is certainly one significant consideration judge moscowitz had when he said that this is a self authenticating for a record i don't think that he specifically addressed the apple steel there reliability there was again never any dispute that there was anything wrong with the information here or that he was in fact registered there in essence both sides were saying that the government's position of course was well he was registered there because that's where he was born so i think that the i realize i'm jumping around a little bit in terms of the issues but certainly in terms of the hearsay rule the problems of eight zero three eight are met through three for the reasons discussed in the government's brief  met i would just say again with respect to the crawford issue i want to focus on that a little bit again this is a situation where it is a catalogue of n m an ambiguous factual matter and again the fact that it is created  even if we accept that is created during the course of the litigation that is not really the dispositive element here so for example by analogy you might look to a certificate of nonexistence of record which is not a testimonial document not withstanding the fact that it's oftentimes prepared during the course of the litigation this is in essence a ministerial recording of information from fifty years ago that's not in dispute and so given the entire context again this is really not something that in the spectrum is something that i think can fairly be considered testimonial and finally the government's position is there was no air on any of the grounds raised by by defense counsel but certainly to the extent there was any or it was harmless this is a document again essentially saying he was registered in mexico well the evidence is that the mother came and said yes he was registered in mexico she offer an explanation but nonetheless there's no real dispute about that and in the broader scheme just leaving aside the document there's other evidence in the record certainly that support the conviction including perhaps most telling the fact that he was found literally in the middle of the morning out in some remote area where he says i've been deported before so again taking the entire record in context even if the court finds that there is there it is harmless in the totality of the record thank you thank you you have about a minute left with respect to having the document ahead of time we did in fact receive the document in advance of trial but it wasn't until the friday on the eve of trial the actual when the trial was taking place the following monday that we were given the after us deal and all those supporting documents in spanish and there translated the government's translated version and that is in the record and we did raise that during the course of the trial as far as what's legible and what's not legible the jury's not supposed to translate from spanish into english what they received that they were supposed to read was the english version of the document and whatever testimony was  offered during the trial and as far as the document being testimonial i think it would have been helpful in this case to somebody who knew how these records were created originally not just the same fifty some odd years later could explain whether a child who was born in the united states could lawfully be registered in mexico five days later because that's what the document says is that he was registered there on twelve twenty nine and there's no dispute in this case that he was born on twelve twenty four of nine hundred fifty one and i think that having such testimony or been being able to examine such a person during the course of the trial we would have been able to corroborate mrs been toddles testimony instead of her being made to look like someone who created a story to contradict the government's case in chief and facts she was sort of made fun of during