good morning everyone and welcome to the ninth circuit we're very pleased to be here in a few necks and you know we appreciate the beautiful weather you will be arrested and we will call the cases in the order of the day sheet the first case they please the court morning your honour's jane olson on behalf of don jose do my best to watch my own clock and i'll try to reserve two minutes for rebuttal on the score prefer something otherwise i'd like to focus my time this morning on three issues if i can squeeze them in first the domestic violence issue and second both aspects of the cologne issue now on the domestic violence we've identified four instances of testimony that violated the district courts in the middle order and how many were objected to one your honor which one was that it was the one from delilah on your to sixteen when she was asked and i'm sorry one twenty three and she said they get into it here and there now of course your hon have identified case law binding in this circuit which holds that when there's a and eliminate ruling there's no need to when there's a ruling that the not is a motion in limine a then an objection later is going to be futile is there any authority that suggests when emotion granted counsel doesn't have the responsibility of raising an objection at the time i'm not aware of a case attention and i think there is one and seems to me it's entirely different in the judges sitting there he said ok this is how i'm going to rule wait for the objection  objection comes so well you want to not sure why it is that player doesn't apply here the government asked for permission to introduce evidence of prior domestic violence in the district court said no ok i think that in that with that background for the government then to elicit testimony even if it didn't do it intensively for the testimony to come in which the district court has said no the trial i think that violates the order well and usually when you object it's because it violates something rules of evidence or something and there's an objection and the objection sustained of the judge agrees with it there's no objection here so again i know of no authority myself and you've cited none that suggest in that circumstance an objection is not required in order to avoid the plane or standard i think the logic of the wood case you cited applies on or i don't think that applies at all it backwards in that case you've got an objection that was rejected by the court to renew it later is futile that's not the situation here there's nothing futile about making an objection when you think miscible and admissible testimony is being asked same concern which is that if there's not an objection and if the question doesn't explicitly seek testimony about domestic violence and indeed doesn't really get a response that makes specific reference to domestic violence how is that the courts are not supposed to is supposed to be able to figure out that that the question has gone into forbidden territory when defense counsel apparently hasn't figured out it's gone into forbidden territory i don't see the arizona all playing in that circumstance well i think these answers questions  answers do explicitly get to the question of domestic violence and why wasn't there an objection i can't speak for defense counsel your honor well it seems to me the most logical explanation is that defense counsel didn't recognize that's what it was getting to because the questions themselves question why did you indicate dani is the one who stabbed you perhaps or because i know what he does to me so why in common sense your honor these are not questions designed to elicit how gentle loving and and  mr jose was in his relationship with this with ms miguel these are questions and answers that deliberately draw explicitly draw a correlation between the prior rough handling rough treatment domestic violence that was that that was alleged against mr jose and identity of him as the assailant now and that is exactly the propensity evidence that the district court bill could precluded and it's exactly the kind of evidence that a juror who might be wavering in harboring reasonable doubt and we know there was one or more in this case because they came back hung didn't return a guilty verdict until there was an allen charge would lean on without any guidance from the district court about how to handle it you said you try to fill in the blanks you say well there was this idea from the testimony at least four instances of where it clearly seems have been rough with her you know she's shaking him because of how he handles or you know it was usually worry that propensity evidence is very inflammatory but there's no detail here that's inflammatory so how does it raise that same concern what the context is crystal clear i mean how do you why did you indicate johnnie is the one who stabbed because i know what he does to me this is a she is describing him as a person who would stab her based on her prior experience with him it's crystal clear  she could have said she could have said well he's put in hours of you before stuff like that but that was you know this whole this whole lot of inquiry was precluded by the district court pretrial so and we have the government's assurances that it went over these issues with the  witnesses before had and so it's not it's not hard to imagine that the witnesses were trying to keep it they keep it general but it's really not i mean it's crystal clear what they're getting at there was rough history between these two people violent acrimonious history between we've challenged the cologne issue in two different ways one is the granting of the government's morning of trial requests for continuance in the second is open the door ruling on the preclusion now obviously they're analytical and conceptual differences between those two but i think there's a common thread that runs between the both and its fundamental unfairness that even though it was the government that skewed the adversary process in this case by untimely disclosing this really critical evidence about supporting the girls identification  agreement is and i'll answer the question i point four aspects of it number one is the preamble the preamble says the whole point of this agreement is to produce evidence in a timely fashion so we can resolve the case and everything is above board the government has shown its cards to to through the defense paragraph one of course which is where i was just referring to that refers to early jackson and there's a there's an assumption that mr jose was and how to rely on that he was going to get early chance but there's others too if you have had this evidence a month earlier than trial i mean it seems that your your main argument is we would have been better off of this evidence never came in and i'm sure that's true but if it had been disclosed it would have come in if it had been disclosed two months earlier say so what difference would it ma disadvantage because it was not disclosed a month earlier well when you're out of the government even pointed out below it effects it affects all aspects of the case in the pretrial preparation we just don't know the answer in the question you're trying to hypothesize that the evidence didn't exist at all but it did exist and so the question is if had been disclosed on a more timely basis how would your client have been any better off he wasn't hurt by the late disclosure he was hurt by the existence of the evidence that's a different kind of prejudice the straight on well what is it that makes the second kind of prejudiced something you can complain about now well i don't think this and else is terms of the pressures with the issues we've really is entirely on the prejudice if the evidence gets in your client's got a problem and that's the problem that was faced upon the discovery that this evidence existed it wasn't the late disclosure that was the problem it affected his childhood ratio now but it was and that's why the judge gave him another two weeks or months to get ready he could begin to revise his trial approach so that prejudice was taken care of by the continuance you see that amount of time ok have something to say in response to that you may of the u s attorney's office for the district of arizona concentrating first on the first issue raised by defense counsel the issue of the questions and answers regarding the what defense claims are allegations of domestic violence again i concur with your honor this is a plain or analysis because the court didn't permit the introduction of the evidence with which was key language and inwood and since the court didn't permit the introduction defense counsel s objected to preserve the error for anything other than plain error by not doing so he deprived it is to court of the opportunity to one review the question answer and see if there really truly was a violation and to to make any  corrections or cured instructions to the jury if possible but in this particular case it's very clear that there was no prosecutorial misconduct on the part of the government the questions asked by the government were not intended at any way shape or adult to lead to any witness talking about domestic violence her well i mean the question now how did you know it was him her response seems to point to past history what else is the question designed to elicit the question was designed to elicit his identity the what we later got from her in further questioning was was that she recognized his touch his smell how he handles her the first question again in a vacuum was you know how do you know it was dani and she's you know she was screaming his name is he was stabbing your stock dani stop and she says because don is always doing things it's easy to kind of look at that after the him that he had shaken her awake it was trying to get him to leave with pen and so it was very easy for them to infer that he's always doing things because he just doesn't listen to her and he wanted her to go home with him that he wasn't going to take no for an answer  but he was always doing things doesn't that have to refer to past violence no it doesn't it's insolubility ambiguous it could mean he would make her leave it could mean that he would wake her up even though she's expressed her wishes and that he's there going to her to leave with them it doesn't mean any stipe of domestic violence again when you don't know already what that actually means there's no basis for this to court to infer that that answer meant the worst possible meaning and this particular matter and as to the answer i knowing how he handles me that's not entirely what she said it was actually a statement there the question was how do you know it was dani do you know how he touches you and she said i just know how he handles me it's just that i live with him so long i know how he handles me how he is with me that indicates she recognizes his touch his feel she knows when he's in the room he knows when he's the one who maybe comes up and puts his arm around her or walks up and pats are on the bat and she knows to mr post to somebody else this is not a stranger to her this is a man that she lived with for over a year and a half she knows that that is there's absolutely nothing in that question and answer that would lead to any juror believing oh no she's talking about domestic violence because it just wasn't there what about you know what he does to me it again your honor i kno me i know how i he feels when he touches me it's in the context of him stabbing her alleged so i don't see how that's anything other than some kind of a reference to violence so i think it was actually in bleep this is what they were actually talking about as the last instance where the laila thomas testified she was asked you know why did you run in there to check on the victim and she said do it here and there again still very big us it says they are indicating mutual argument and they get into it could mean they just argue it's also particularly but night in context when you take into account that her sister little idea who had the door right outs right next to where this happened her bedroom was right there they were sleeping on the mattress right by her door testified that she heard the victim screaming stopped on the stop and she was even so close she could hear the physical body blows to banging this victim being stabbed and yet she didn't come out of her room when it was all over because she didn't think anything out it and thing about it until she heard her sister de l'isle you know what you know what she yelled which then caused her to realize that the war was going on so in the context of the entire trial and the context of how these statements came out there particularly benign in this particular instance or your  time is up i would like to ask about something that didn't come up in the opening argument but did come up in the opening brief and that are the references during closing argument made by the prosecutor to mung other things  defendant's lack of care about the impact on the minors there and there are portions of that argument that are quoted i think in your brief as well and if the brief justifies that is being  revealing the evidence i'm having trouble understanding how singling out defendant as being callous because he didn't care what the impact on these kids would be helps to ident defendant as the culprit as opposed to somebody else and that was the issue at trial it seems to me most of those comments tended toward the inflammatory to paint defendant as a bad guy that he didn't care what the impact on the miners would be times a stabbing is pretty callous the fact that he didn't care about the impact on the minors with whom he had his own relationship that doesn't say it's this person as opposed to some other person to me i just not sure what the point of that argument argument here is the defendant didn't care what he did to them you know what makes it even worse these are his family and then there's a paragraph about that which doesn't distinguish this person from some other culprit who would have no relationship with them this is painting this defend as uniquely bad because it's his family and he doesn't care about them your honor but the government again that lets the evidence in this case that this stabbing did occur in this room with two minors right there one right next to the victim one laying on the floor by or on a bed right by the door where the defendant ran out and that's that the evidence that the government commented on but the government didn't urge the jury to find the defendant guilty based off their their claims that this is such a callous way that he handled it we didn't use that inflammatory purpose in any way to otherwise claim that that's the sole reason they should find this defendant guilty we were merely commenting on the evidence and also commenting on kind of the credibility the witnesses which is highly attacked by the defense counsel in cross examination as well as in their closing which came after these particular statement interest to show that this whole event and where these victims were and what they were seeing could play a part one in showing that they do remember this event even though it was four and a half years before trial because this is kind of where they were and it was a very traumatic type of the vent that occurred and piling on even if it was a little close to the line where there's substantial credible evidence to support the verdict cannot be shown by the defense but those particular statements affected the verdict and in this particular case identity was clear normal woke up screaming stopped on the stop she knew it was johnny she was biased touched by the smell of us clone by the way he was handling her and moments before he had attempted to wake her up and get her to leave with him which she did not want to do her son heard the same argument he was laying right there marcus was laying by the bed heard the same argument and he said that if it was speaking in a mad kind of mad for four and a half years but neglected to turn over your client would have preferred to deny the continuance and exclude the evidence but the court decided it was relevant evidence so he gave you the time to prepare thereby alleviating the problem of the late production the i disagree with that your honor he gave the government time to get the bad evidence in mr jose showed up for trial if i did your client i need time to respond to the late production of evidence you didn't ask for time to respond to that i didn't asked whether he asked if he need to time you just a den of five the problem with late production is that your client had planned his whole trial strategy on that evidence being not being available it was available and so the judge responded to that concern by giving time so your client could prepare your client doesn't have the option of saying no i don't want to prepare against this bad evidence keep the bad evidence out and the judge didn't give that option it was actually honestly it was for both parties to prepare the government hadn't listened to the tape either there was no transferred me to the tape it was actually it was to benefit the government just as much as the doesn't matter i question is how would you have been better off if you'd had even more time we didn't as that's what would have happened if they disclosed it earlier so you would have had more time so what would you have done differently there are bigger picture problems here your honor and it's of the adversary process the whole point of the disc the discovery rules the disclosure agreement is to lay out the evidence to let everybody to let the adversary process play itself out on an even playing field and then you show up for trial the date set for trial after the incident for a half years before and you're ready to go for trial and then to give the government the benefit of extra time to add introduced in corporate or evidence on the morning of trial when the defendant with a constitutional right to go to trial is standing there ready to go there are a number of concerns we've listed eight of them in our brief