and i understand i have to keep track of that myself i might get the time clock to stop start there i'm already ahead in this game and now you know that i intend to concentrate on today are the two issues that have been certified for this appeal but before i discuss those i would like to strongly urge this court to grant our motion to expand the certificate of appeal ability in this case that motion has been presented pursuant to rule twenty two dash one in our briefs and the reason that that should be expanded is because all of those issues are very strong there constitutional issues but more than that they are essentially the same issues as the other issues which is ineffective assistance of counsel this case is really about not whether counsel's conduct fell below the standard we know that it did we've submitted two affidavits of highly experience respected attorneys in tucson to that effect and the state or the government has submitted nothing in contradiction and all of the rulings have been based really on the second prong of strickland which is prejudice and if you don't grant the certificate of people ability expansion then what you're doing is sort of balkanizing the prejudiced from each of these issues when really it should be looked at in its entirety to see if counsel had functioned properly if he had done his job what the outcome would have been in this case now turning to the first issue in this case that is the issue of the hearsay letter as the court is well aware that letters the only evidence of the dates that were in the indictment in this case those were crucial to this case strictly by virtue of the structure of the indictment if you did not have different dates you would have had nine different groups of essentially the same count the indictment would clearly have been multipl so those were required to have been shown as a matter of fact the district judge dismissed three of those sets because they wanted to end this hearsay letter so the district judge certainly understood that those needed to be proven and this letter was the only evidence of the state's this letter was admitted without objection by the defense because we counsel did you didn't the jury acquit on some of those counts as well yes the jury acquitted on many counts but it but on the counsel that convicted on it needed to go through and line up the states and it certainly would not have been able to do that without this letter when the fact that they were reasonably near the dates be  sufficient it wouldn't have been sufficient in this case because the indictment was structured with those particular dates so that was something that the government alleged and the government had to prove and i think that the the trial court's ruling in dismissing three sets of those showed to the court's recognition of that as well there was evidence that you know it was all around the same time within a year or so but nevertheless there were a lot of different counts that were around that time and what you would have gotten is convictions on things that were essentially the same action so they really needed to line those up and that was the whole purpose of this letter that's the harm of the letter now the court below in the  corpus proceedings said well this was harmless error because it would have been admissible as a recorded recollection under roll eight zero three five that ruling was erroneous because the rule itself requires that the statement have been made while the matters were fresh from the witnesses memory and we certainly know that that was not the case here this letter was written a year afterwards it was written about events that were not particularly of warming or something that would really stick in a person's memory but beyond that we know that it was not fresh in this witnesses memory because the witness said he had to ask his wife about it he didn't remember it he asked his wife they set down with goodness knows what maybe a calendar maybe some other notes we don't know what but we know that he asked his wife their four week crude he didn't remember yes there's nothing on the record that said that he didn't remember as matter of fact the it is to the contrary he says that was a far representation as his recollection at that time is not true i think the record shows that because he had to ask his wife he wouldn't have had to have recollection of what took place the problems with that line of reasoning is that this was not all drawn out very well at trial it was not drawn out because the defense counsel did not question  so the distinction between what i'm saying and what you're saying was not really in the record why did you ask your wife why did you have to do that if my boss says white male out of that says what you did on the certain that i'm not going to consult somebody else if it's fresh in develop that would show that they were on the government failed to prove there was no nothing in the record that shows that they were affirmatively wrong it's just that the rule requires they be fresh in his recollection they weren't and that's why it would have written the letter was the events took place within a year of the time that the letter was written about a year before and the trial took place within a year the time after the letter was you know i think it context of this case judge shame it took a close look at the case and decided not to get into whether or not there has been some violation of standards but said even if there was a district court judge for longford before he was a court of appeal and i understand his reasoning and i take it that your responsibility venues to show us that he was correct that there is no prejudice been show on this record that is even if there were inappropriate conduct on the part of counsel that there's no prejudice you're absolutely correct your honor and i was a lawyer applying to judge me as questions of counsel that is not the issue of m m that's the part of the case that i'm most interested right and so my i and maybe i should have wasted my time but to responding to something that's really irrelevant wets relevant to the issue of the letter as judge to seem a found was whether or not the information contained in the letter would have been admitted one way or another had trial counsel objected when it was offered now  looked at the letter does that refresh your recollection that would have been away and then he would then testified about the dates the letter itself was not very complex we're talking about three groups of dates in august in not for over and in or says that he recalled that he gave the greater to mr byers to use to play the land in in december and january and it's the beginning part of the coffee and mike so he h notice to the defense to prepare his case and also for double jeopardy so if mr mallison was asked to look at the legacy if you fast as memory and if only to remember was it happened in august and october and not the specific dates those track the counts the indictment we're not talking about a variance of more than a month and we've cited cases in our brief where there have been great time periods a variance between the data alleged certainly had an incentive for mr nelson to make notation somewhere and it wasn't just on a calendar i think the testimony by mr nelson was that they looked at other records as well but mr nelson had an incentive because of his employer to keep recorded there's no reason to believe that it had an ejection be made that mr nelson could not have looked at that letter refresh his memory and testified apart from it so those states in the letter would have come in  time in early fall august or september he started noticing the red rating happening new roads were being cut in existing roads were being widened and he testified that that extended all the way from august and september site for the party and there's testimony that mr blauser words to mr at nelson prior to the party that he had been grading the roads out there himself and then there was a an there's only one case that council can find where that was reversible error because that my counsel was a proponent of the letter was a reg case and we've distinguished that because the there is ample evidence here of the crimes in ray there was only offered by the government and there was no reversed so with respect to the second issue in the case is whether or not mr browers counsel was number seven in his order denying the petition noted that the judge's instructions to the jury did not require the jury to find as to those counts in june of one thousand nine hundred seven that the government damaged the that barbecue with a band and the print was just to use that area in the parking lot of the purpose and indeed what happened though was if they substantially widen the parking lot they also buried an abandoned car which meant as the archaeologist t that you don't look at the site because it's not an element of oppa he found that there was a disturbance or resources in the indian kitchen road next to the site and he also found that there was a disturbance caused by the bearing of the automobile he also found that the so if you were talking about folks who testify well gee it was in either august or september or october how do you account for the fact the counts eight hundred twenty one are differentiated from counts twenty to only by the dates they're time somebody digs a hole anywhere in the desert it can be an archaeological crime doesn't have to be part of an archaeological site there doesn't have to be any damage to any archaeological artifact government decides to investigate it that's it