following trial on charges of aggravated sexual battery is daughter a minor following a two day trial what i'd like to focus on first is our first issue that we raised in our brief which was whether not there was an abuse of discretion by the district court in denying this debunkers motion for a continuance and in that vein i would note that on september seventh two thousand and sixteen on a cruise ship after having revealed to her mother that she had been sexually abused by her father she was fourteen at the time and she was twelve her mother in turn reported it the next day to the cruise ship they take sixty days trial set the forensic evaluation was not completed in that period the psychologist requested a fifteen day extension which was granted and then a jury selection he was found competent and counsel at the time that the trial counsel for mr buckner had requested to continue because he had not candidly he told the court that he had not prepared for trial pending his client's psychological evaluation and competency determination and mind you were on the wednesday before the monday of jury selection and the court denied it and i think what is interesting is the government even on their own suggested to the court what they called in the transcript a compromise and suggested to the to the judge that he granted a nine day extension because you know that was that was their suggestion and you know notwithstanding their suggestion and i think it was certainly a good suggestion and i think objective really in this record there's evidence to support why that was a good subject and it's specifically with respect to now in retrospect reading the record and going through the process of determining what if anything may have been done differently as the case law indicates specifically during the trial during the critical portion of the trial one of the two for thirteen fourt fourteen witnesses regarding other of a similar type misconduct which was actually mr appears younger trainee isn't his younger brother yes oh the younger brother yes one yeah and then there was his niece which was the second one but the critical thing of the revelation of why i think this record shows objective lee that there was prejudice when councils that i haven't prepared for trial  was when the government had to listen to the testimony from his little brother that he had apparently done similar that x to other children that he was babysitting and the lawyer said on the record we were never provided that a discovery he said first we moved in limited to exclude it altogether just generically and now i've learned for the first time in the middle of trial that his brother in the statement he gave the police of when he testified to on trial which also goes into our second issue which is that this trouble because they had asked him about you know the dynamics of what was going on with mr  and he responded he was also doing it with other children objection sustained this regard then the government if you recall from from the transcript asked another question which i would say submit reasonably  reasonably calculated or should have been reasonably calculated to elicit an improper response or no i mean i think when you read it i think of another fair interpretation of it would be and maybe the better interpretation would be that they asked the second question to emphasize the fact that he hadn't actually seen anything in other words that and he didn't really now he had no personal knowledge to try to clean up anything that had happened from the other i mean that's how i understood it o disregard this ask an open ended question as a follow up to your last question about what you can with other children of course the response was yes that's what he told but in any event that's when well i mean the second question was did you actually see any of this and he said now and then he added but i heard about it yeah that he had told me yes so i think that that it's reasonably predictable that if you ask a question like that as open ended following a sustained direction that the response is going to be in that genre with which it was looping back to the continuances these are two overlapping factual scenarios to take place but two separate issues which of this trial and the denial of the motion for continuance at that time as i said the counsel for mr buckner said he had never been provided this in discovery he had no idea that  rather had made a statement about other children and the government and reckless so had shown the judge the bates stamp numbers and read into the record exactly what was provided in discovery and that's indeed what was provided and what was said by is rather my point is then that's objective evidence that he wasn't ready i mean that is a critical point in this trial he only moved really interpretation is if he had known now he didn't know and i think the fact that he didn't know that this critical crucial use of evidence of discovery that was provided to him in trial and he was shocked to have seen it at least what he thought for the first time when when this this trial motion was made and testimony is i think is indicative of the fact that he wasn't prepared for draw think that's objective evidence and that he would have  could have moved in limited and i would suggest had to be moved in the mini as to don't allow the government introduce any evidence of unknown other children he was babysitting for certainly would have been granted as the  circuit panel indians would stand at and that's true also the court said it even if implicitly they overruled the decision in varied around the court would still be bound to follow a prior precedent rule and and i can see that that's true too but if you look at it in context of what the supreme court said it's there's no mechanical test you have to look at the specifics of every case and here we have had psychiatric problems that are suicide attempts his lawyer candidly admitted he did can i ask you question about the air like a pretrial order that directed al pretrial the trial be i guess that december seventh calendar call well what i think happened is that the first calendar call that if i'm not mistaken that was august thirtieth two thousand and sixteen he wasn't even brought over because there was another a second course sixty or so days out but that it wasn't wasn't done in time and so we didn't get back to the calendar all of the same day as the hearing on the competency which  five minutes thank you years acts which were reprehensible remorseless and consistent with a pattern of abuse that he inflicted on two other relatives and he has not identified any errors either today in argument or in his briefs which justify reversal he focused on the continuance so i'll go there first and i'm going to mostly don't want to repeat what's in the briefs already but i want to focus on how the record belies his claim that his counsel was unprepared and i point the court to three parts of the record the first is the december ninth status conference that immediately preceded trial and just so we're clear on the timeline this is a few days after mr buckner was found competent and after the request for the continuance was made and denied in that status conference which concerned mr bucknor satisfaction with his counsel counsel said the following thing this is documentary want to seven page five quote i want to see mr buckner yesterday at the paul ryan detention center and spent many hours with him talking not only about the letter but going over all the discovery discussing my plan for to defend him next week and the evidence the government had and what i thought the government was going to argue and by the end of the time we spent together it was probably maybe close to four hours mr buckner actually apologized to me for sending the letter and said he was going to today ask the court to leave me on the case so i can represent him next week and quote so i think that goes to the point that although he initially claimed that he had not had adequate time to prepare his client or to review discovery with his client that had been done for trial the second part of the record that point the court to is his cross examination of his younger brother because that was the focus of his argument that he was not prepared to meet the claims of the younger brother and if you look at documentary one seventeen of pages three twenty four twenty seven there's something interesting about that he actually has a pretty effective and pretty detailed cross examination on two issues the first is he points out the brother at one point in his life apparently was a paranormal investigator that was  fact unknown to the government which demonstrates independent investigation by the defense and the second part of his cross examination concern the fact that the younger brother had told mr buffett in the defendant's wife before their marriage that about the abuse in other words that he had disclosed this to the wife and the wife had married mr buckner anyways and that was in the discovery the very discovery document that he claimed not to have received or not to have adequately reviewed so again it shows that he has reviewed that discovery on a related note in the third final part of the record that i want to make very clear is the timeline of this case i believe opposing counsel may have inadvertently said that the case was initiated in september of two thousand and sixteen i think you meant july because it was initiated the indictment in fact was on july twenty second twenty sixteen and i think was inadvertent because even then mentioned procedures that happened in august but the timeline matters of course because in august twelfth twenty sixteen the government has already provided a second discovery response which included the f b i three o two report of the younger brother statement and so by august twenty second twenty sixteen which is more than one hundred days before trial mr bucknor objected to that for thirteen for fourteen the evidence for fourteen evidence and on september second one hundred and one hundred one days before the trial he moved in lemonade to exclude it and again that goes to show this was not something that was a surprise to him or a witness that he was truly unprepared for this was you know in other words not trial by ambush this is more akin to running the ball up the got from your own twenty yard line all the way to the end zone this is something that he should have seen a long way coming  that the first again is the timing inverter ah this court pointed out in emphasize how short the time was between the superseding indictment and the trial in that case it was thirty four days and of course in those thirty four days the government c discovery until the very eve of trial in our case in contrast there were one hundred forty three days between the indictment at the trial one hundred one days as i mentioned before between that motion in limine day about the four thirteen witnesses and trial and there was more than a month that passed between the final small amount of discovery the government provided on november fourth and trial moreover inverter rom a what you had there was a relatively complex financial case where the linchpin of the case was the need to cross examine witness who was going to go over tax records or financial records so the very least the defendant was able to show that there was pacific's a substantial prejudice because he had not been able to review all those records and self and comb through them and adequately be prepared for cross examination there has not even pointed us to an area of cross examination or an area of defense evidence that he would have been able to identify or that he would have raised before the court to his benefit and that's the key in the case  moving on if the court has no further questions mr bucknor briefly touched on the mistrial issue and judge rosenbaum you got it absolutely right when you look at the record the sequence of questions clearly shows first an entirely appropriate open ended question that elicited an unexpected response and then an attempt by the government to clean up the record and in fact you'll probably see the question is quite leading it's about as leading a question and maybe even just an outright leading question as you could get on the direct examination counsel asked you didn't see him abuse anyone else right and that was an attempt to clean up the record counsel made that clear in the sidebar and in fact the court agreed that the information the government was attempting to elicit which was other psychological tactics used by the defendant were entirely just as to the timeline i thought i said july eleventh two thousand and sixteen he was arrested on the cruise ship if i call that's of temper well the first court date and i did mention was august thirtieth which brings us to the timeline in any event i think that and as i stated earlier when you look at the specific facts of this case and following under and there being no mechanical test i think that objective really where  days that was because the court said and this is also in the transcript that after he went if you go back to chambers following the denial of the motion for continuance on the wednesday which was the seventh you saw there were two letters written by mr buckner essentially stating there is disharmony between him and counsel that he's on him four times since he was arrested and wanted new counsel so the court then called the parties back friday two days if we didn't have people like you who are willing to accept the appointments