please the court good morning pamela o'leary tower on behalf of lynn and rudolf i haven't done an oral argument in quite a while so i decided to do a checklist from the a b a to see what i should prepare for one of the pieces of advice was that i should consider making concessions the government has made to concessions in their answer brief they have essentially confessed err i'm willing to go out on a limb here and say that perhaps a four hundred four b evidence that i challenge in my very first citation of the error in my brief is perhaps direct evidence that doesn't really change the overall flavor of the cumulative error analysis i would also like to reserve five minutes for rebuttal ok trying to keep your eye on the clock at countdown ok having made that concession and it is again our position that it really doesn't affect the overall analysis of what happened at trial here i think that i should begin with i actually don't know where to begin i was so astounded when i read this record  perhaps i'll start with the vouching i was also doing some more preparation last night and came across what is actually a variant of my argument on vouching the improper valjean by agent sac annoying for  jeremy jim villa who had not yet testified and a variant argument on that same argument is that it's six zero eight evidence and it's improper character evidence for a witness who's not even testified yet so that's another way to look at this argument but our position is that because the court the defense attorney objected and the court overruled the objection on the  the vouching here is critical to this case i think standing alone but obviously for the cumulative error argument jeremy villa was not even going to be called as a witness it was not until rodney soon as you me the corrupt police officer who had been involved in the vending scheme with germany to below fell apart under cross examination he was destroyed by kesha tommy who's a very fine trial counsel and it was at that point that the government realized they had to call jeremy to below to establish knowledge and the government says well the jury disregarded jeremy g below because they acquitted on count one which was c conspiracy count and all that red robe nissan rogue evidence goes out the window because the jury disregarded jeremy gigolo and we just said greta respectfully because our client was convicted of count two which did require knowledge and the only quote unquote credible direct evidence of my client's knowledge came from jeremy who had been vouched for by the lead investigating agent on the case before he even took the stand it would be impossible to recover from the lead agent telling a jury essentially that this upcoming witness who you've not even heard from yet is truthful consistent reliable that's essentially what agent second always said the government tries to distinguish worked with jeremy below from day one he knew his weaknesses and yet he took the stand and at the prosecutor's prompting and upon his questioning told the jury how reliable testimony would be when he took the stand which he did and at that point he takes the stand the sole purpose was to have just establish that my client knew that the concession was was a reasonable one but let's assume that the other three errors that you have argued are in fact trial lawyers the government's response is going to be or has been in their brief volage that you know he was so overwhelming he would have been convicted anyway if we hadn't done any of those things what's your response to that their argument basically that it was oh well it was harmless because overwhelming evidence there was no overwhelming evidence what they had the only direct evidence they had of my client's involvement and his knowledge was rodney soon using me and jeremy to below the gun rest of the evidence that they had which was undisputed we never disputed that the four runner had been invented we never disputed that in fact by the time the investigation had reached its apex and they were making phone calls us soon as he was making these  phone calls consensual phone calls to my client the four runner had been sold to another buyer on the island of oahu i think so the fact is that the evidence they put on it trial to corroborate their two witnesses was the serve co expert from that's a big oil dealership dealer in in honolulu to establish what fin flayers and bumpers and all these other things differences between years of toil before run our models and where the vin panels the vin markers should be we never disputed any of that the they put on his friend who my clients friend who testify what he would do if he bought a used car checked the vin numbers checked this checked that's what i would do and if things didn't look rivet well then i might pause but never saying you know that that my client should have done those things and that my client would do those things as well or that anybody else would do the things because quite frankly my client sold the car to another individual who obviously didn't do those things and registered that car legally as well my client's car was also registered and that's another one of their witnesses was sitting county honolulu d m v well the only way the color could change on the registration was if my client had allegedly done one of three things and so but nobody could say what my client had actually done to change the color of the vehicle on the new registration nobody said anything and it came up in a safety check so there's there's that's pure speculation it could have been one of three things none of which are illegal in and of themselves people had their cars painted all the time the fact that you would notice that the vin stickers were a little bit frayed around the edges the ones in the door jambs or the rivet was spun this vehicle was purchased i believe in two thousand and eleven and i think it was a two thousand and two it had been around the block actually it had been around a couple of islands you know it was not a brand new car only an altered mistaken vin number was on the engine block which you could only see if you pulled out the engine and no reasonable person is going to be expected to do that the well all of things that you say are in and of themselves there are innocent explanations but cumulatively that you know the testimony as i understand it was your client had had and was almost a semi expert on top of forerunners and the differences in the year make and model something that somebody with his knowledge would expect to know he paid a ridiculously low price for double his money in a year and use your own cars go about a value i mean all these things anyone and in and of itself ok you got a good deal you know people get good deals anyone is maybe  there's an innocent explanation but why would the jury looking at this cumulatively say oh you know this guy knew what was going on i think they could go you know this guy knew what was going on but i call that not proof beyond a reasonable doubt i call that suspicion and that's not enough it's never enough and i think that if we had just a voucher which i believe i think i consider the vouching the most critical of the errors that happened here that alone  deaths it's incredible to me that you can have the lead agent pouch for a witness the government never even intended to call because he was so suspect and that's the truth on german gigolo they had to bring him in to do cleanup as i said in my reply  and because soon soon as you may have been so destroyed so what the jury is left with basically is now a doubt for a witness even if they disregarded soon sunni's testimony totally and a bunch of circumstantial evidence is indicative of innocence or guilt the other thing that's problematic to me is that throughout the trial these police officers were in the traffic division including the female police officer who did testify about recovering the or taking the report on the red nissan there in the traffic division they pull cars over they give parking tickets running red lights these are not the felony detectives that deal with stolen cars they may discover that a car is stolen when you know they ask to see your license and registration and they may and they may get a hit when they call it in but other than that they're traffic cops that's it and the testimony about m rudolph shows expertise and his fact that he was more than someone light or love toyotas for runners or toyotas came from the government witnesses who were impeached beyond belief but to try and impeach a witness just below the last government witness or the second last witness that was after being basically he wasn't even rehabilitated he was billing and presented to the jury on a silver platter as you know the golden goose you can trust this guy you can trust anything he says is is astounding to me coupled with the intentional elicitation from agents second knowing about my client's decision to not to remain silent when he was searched and searched when was executed at his house to not to invoke his miranda rights to invoke his right to counsel and to quote unquote not cooperate that to me is breathtaking it is just astounding that that could happen and the government at trial when mr she had told me objected did not quibble did not say a word when he asked for a cautionary instruction did not object or saying anything to this court now the government says yeah it was probably improper or but it wasn't as bad as other instances and besides they opened the door to the inquiry because i had to explain why the nissan sheriffs the sheriffs who own the red nissan had never been arrested or indicted or prosecuted because mr should have told me asked a single question which is have they the sheriff who owned the red nissan robe ever been arrested or indicted the answer was no he did not going further in the case of the government sites about opening the door it was the defense that brought in the evidence initially we didn't bring in the red nissan rogue evidence the government did over defense counsel's rigorous objection and motions in limine that they filed prior to trial so the government brings in the red nissan robe has their witnesses talk about it has agent sac and i talk about it may please the court mark wallenstein of the united states and the attorney who prosecuted this case so tell us about the vouching how did that happen you talk to your witnesses ahead of time and say you're not supposed to say that sort of thing yes i vouching is everybody knows it's a bad thing yes your honor how could you possibly have not me in particular in this circumstance not said here witness you know you're not supposed to talk about how trustworthy the other witnesses are your honor i did not intentionally elicit that the case agent talk about the reliability or truthfulness you know they're still not sure if you're still not answering the question i asked you yes your honor what i was trying to get at when i was asking him the line of questions that's at issue in this appeal was that the defendant landa rebel photo had not cooperat take place within a few pages of each other and if your honour's are actually considering reversing in this case i would ask you to read the cross and look at the direct i mean excuse me read the cross and look at the redirect you'll see that my questions are responding to areas that the defense raised first on the vouching area the defense brings up credibility they basically spend thirty cooperators so you're standing there in the parking lot after arresting him and he gets a text message from someone trying to buy drugs from him and you still rely on him it cannot be that the defense can raise that issue and try to make jury made you think the f b i looked like morons for a lying on a criminal in a car thief and a drug dealer like german below and i can't respond to it at all i have to be able to respond somehow i acknowledge that i should have asked more narrowly tailored questions to make sure that the response did not go one step beyond to talking about trivial its credibility or his reliability but the questions i am allowed to ask permissible questions your honor are questions along the lines of well why did you decide to rely on german filo and the answer is well he told us a story about selling of in vehicle to a cop and we went and checked it out we found the vin vehicle and the people who had it bought it from a cop so that corroborated his story he did what he said he was going to do at least as far as my interactions with him were concerned he told us x y z x y z checked out that's what law enforcement does we don't choose cooperators because we like them we use them as cooperate because they're the ones who know who else has committed a crime and in this case you know i really have learned an immense amount from this appeal i think a very subtle difference in the questions that i would have asked would have caused the case agent to not makes some of the references that he made and i asked a bit more open ended questions than i should have you know you still haven't answered my question yes you are and it may be that i'm asking too much and i know lots of things just happen in the sort of the heat of the moment or the heat of battle or whatever metaphor we want to use but i gather you did not instruct the witness as to the things that were for me vouching is to say the witness had not been told by you that you can't say i believe he is a trustworthy person so i don't generally as a practice teach f b i agents you're not supposed to talk about the invocation of the fifth amendment in hindsight given that there was an indication a probably should have focused on that during prep bag knowledge that but this issue just your honor on the harmless error point the testimony was basically inconsequential with respect to the defendant's knowledge that the forerunner that he purchased was knowledge was proven up through admitted lee circumstantial but extremely strong circumstantial evidence the first piece of strong circumstantial evidence is the audio recordings there  audio recordings of conversations between the defendant and his friend right susan me where susan he says there they've got me they've got me rope which is where your police authority is removed for doing something wrong they're both police officers and susan was the one who sold the forerunner to rudolfo sonu sood he says they wrote me as one of the charges he says well i think it's about the stolen vind four runner that i sold you and his response is not what are you talking about stolen vin for runner as responses well when you just stick to the story when you tell him you bought it on craigslist his response is to try to help him come up with a workaround and i submit that an innocent response is going to be what are you getting me into what  talking about so the audio recordings are just as a circumstantial evidence does not mean it's bad evidence we prove cases through circumstantial evidence that's how trials get proven that's why you have trials but that's what ultimately makes trials go one way or the other the next piece of evidence is the photographs of all the missing vin stickers all over the vehicle and i would like to correct the record factually appellate defense counsel said that you know the card kind of been around the block and the vin stickers were you know frayed and they get frayed it actually included some of the photographs of the vin stickers that have been removed in the s e r so that's five s e r five thirty seven five thirty eight five thirty nine five forty five five forty six five forty seven the last thirty forty pages of the s c r of my trial exhibits if you look at them they are large rectangular areas visible from standing outside the car of the doors open where there's this gummy residue rectangular gummy residue or someone has clearly removed the vin sticker and if you look at the vin plate underneath the windshield you'll see that it has a marking edged into it which is a security device  that manufacturers use they put a rivet in there that has a little time so if you try to remove the vin plate from one vehicle and put it on another it leaves this marking in the vin plate that you can see visibly and a trained police officer there was testimony from a caria or a big deal and why he would carry around surfboards and outdoors equipment people get really into these off road vehicles i have one myself someone like that is going to know that that vehicle is stolen only has to do is under at the windshield and see the markings the visible markings on the vin plate open the door any of the doors of the vehicle and look at the gummy residue and he knows well there's there's a vin sticker missing i better check and see do something different and if you run the numbers if you run the numbers on the fake vin plate or the fake door sticker it comes back to a nine a black ninety eight four runner the vehicle he was dealing with was a silver two thousand and four runner in the differences between the ninety eight and the few thousand are significant this is the most major body type difference in the manufacturing of toyota and i put on and i put on three expert witnesses from servo toyota which is the only toyota dealership and why i wanted to work there for over forty years when work there for over thirty years wanted to work there for over twenty years i mean these are genuine experts in this field and they explain look the two thousand is got a good scoop and it has these aggressive fender flares and something on the vin number of selfhood since this is a ninety eight he who gets corrected but he would have known it was a ninety eight because he registered it in his own name so on the face of the registration when he switched it from the prior owner to himself it was a black  ninety eight registered in his name and then at some point later it's he changes the color to silver it's a silver ninety eight registered in his own name now it is theoretically still continues to say ninety eight he says lind rudolfo but that was unlikely is what the d m v witness testified the d m v witness testified that most likely what happened based on the way it was logged in the computer system is that when a golfer himself changed the color from black to silver so a trained police officer and toyota enthusiastic has a two thousand body vehicle that silver his registration as he's changing the registration name read from your own name it says it's black and ninety eight he knows the difference between those two vehicles there are missing stickers all over the vehicle there is a spun plate spun rivet on the plate under the windshield and he purchases the vehicle for about half of its value and then two years later after driving around as his main vehicle his main police vehicle he sells it for more than double what he paid for it how often your honour's does that happen in i just submit that i appreciate that the defense has made a concession with respect to the first point of error and that's really been the tone of this trial that sort of approach from both counsel me and my adversary here and myself i was forthcoming with the defense in the trial attorneys about my plan for the trial what witnesses i was going to call that i didn't know if i was going to call ge no motion for a mistrial there's no motion to strike for either either of these and we moved on and i just ask if your honour's are considering reversible error in this case take a look at that cross and take a look at my redirect and you'll see that i am coloring well within the lines though i acknowledge i could have done a better job well me ask you about your valuables testimony that that  honor i don't know that the labor union issues driving the train on this appeal but to answer your question there was ample fact testimony from which those conclusions could be drawn fact testimony that was not objected to s sometimes asking that extra question isn't worth the trouble on appeal but i submit that that error is mere trial error and i submit your honor that it is permissible aping in testimony this is the sort of thing the juries get they understand when one car guy says yeah that car guy had to know i'm a car guy he's a car guy this is the body type and i should have made that argument in closing rather than having german below do it i acknowledge that but i submit that it absolutely does not rise to the told me is a very nice man i find and i believe to this day to this moment that the conduct of the prosecutor at the trial in this case was intentional and it was knowing i find nothing unintentional about what happened here in this trial with regards to the bouche ing the in vocation of the right to counsel and to not cooperate and to the especially the testimony because he had already been told by the court that that would not be permitted and he asked to re argue that issue and the district court said well it's a little speculative as judge malloy pointed out you know you never met the guy but i think mr sugar tommy was all of his skill can overcome that in cross examination the trial error here is not mere trial error it is a violation of mr rudolph was due process right to a fair trial every question that was asked by the prosecutor particularly beginning with the value chain was intentional it was intentional and when mr she could tell me objected and the district court overruled his objection it continued it served the prosecutor's needs which was to rehabilitate a witness they were now forced to put on which they now say they wish they hadn't in hindsight hindsight is fifty fifty my client was convicted because of the trial error that was committed here