turn to the next case on our calendar which is united states be the failure to disclose brady information and the second would be the impermissible introduction of evidence of a death threat against the witness for i think between three and five days before trial i think what i try to explain in the in my reply brief is i can only go off the date of the date it was marked on the c d s themselves and magic marker i don't know when the defense picked them up one of the c d s i believe the second one was actually it looks like it was created eleven thirty one at night so i think that was the one that was created on the eighteenth  why should we be concerned here you should be concerned because the real i would say the reason the time i saw it is on this record when you look at the record the the there is no indication that defense counsel was even aware that these materials existed because of the late disclosure specifically prior to no sense that they were nowhere near before they were disclosed or is it a problem afterwards and after disclosure you're saying there wasn't enough time to review them or watch correct well you see that's where the failure to ask for more time comes in because one would think that if counsel didn't have a chance to review them you know whether whether we view this is brady because you say it fix energy clio pietschmann or thirty five hundred mi thirty five hundred it's turned over because there may be impeachment material there may be inconsistency some prior statements if defense counsel that it would be a request for more time well just but fence counsel specifically asked for thirty for brady on this witness i think two months earlier and the government's response was weak right so at the time that the government hands over the thirty five hundred my reading of the records has the defense counsel focused on things like prior testimony and when and there are there are comments that the governor refers to and says look they obviously saw all the thirty five hundred but it's not all the thirty five hundred the comments the government is talking about it seem to indicate that defense counsel may have looked at the index just to see whose name was listed and then gone to or the prior testimony that they had given in a different proceeding so the what the complaint and try to explain to us short so the complaint is that is critical to the government's case for two reasons one he provides the only evidence completely uncorroborated that the victim ever threatened my client the second thing that he provides also  is evidence that my client apparently called and threatened him after the murders so the complaint is that the fact that ortiz gives a statement to the police the day after the murders he voluntarily goes to the n y p d and gives them a statement which is completely at odds with what he testifies about a trial was a statement that this statement he gave to police was that he ortiz was in the car with jason the victim the day before the murder when my client approached jason got out of the truck spoke to nelson and then when jason got back into the truck said to ortiz he will nelson will call me later about paying the money and that was it and then also said he's not going to provide any further information to law enforcement there's nothing there about a confrontation nothing about jason making a threat to my client i mean what he testifies to a trial is not contradictory it's just more false what  testified to a trial contradicts that to the extent that it may it is much more in culprits were to my client in other words he testifies a trial about this threat you know that jason made a threat  but that change in story only comes about after he's arrested so for the jury not to know two things one that he initially gives this statement a statement which says that he was in the car with jason when my client approached and then a trial says no i was around the corner to a trial he says that jason's girlfriend jasmine guzman was in the car while her statements first he never says anything about her when he speaks to the n y p d her statements say nothing about her she says that she didn't even get there till an hour later doesn't remember seeing ortiz that day and her timeline is actually backed up by the cell site information which shows appears to show my client and jason crossing paths that day at about four fifteen i believe it is luzon says she gets there at six so that would actually match up with her version which is that she wasn't there in which case he's thing with she was there or not it's an incidental detail like whether a car that passed was red or blue this meeting cannot be considered incidental because this is the absolute this is what the government argued was the motive for this crime through the entire thing  fact in there and women a motion they even said that these murders this murder was a direct response by the threat from jason to nelson and that conversation is the threat so what's he's a cross examined on these late and with so much other material that they didn't even read it and they didn't know what was there that comes back to judge reggie's question you haven't answered satisfactorily judge reggie is question yes if you were snowed under by a huge thirty five hundred delivery you know the thing you must do is go to the district judge and say judge they've overwhelmed us with all the stuff we need to have time to look at it i don't know that was said and the government the government says the government says this is grossly exaggerated what was given to them the volumes first of all consisted primarily of stuff that had already been disclosed long ago the stuff was well organized neatly organized they had plenty of time to look at it and they never complained about this until now so why doesn't that this judge reggie says answer the question because you're assuming that assumes that defense counsel  knew that there was something there they needed more time know it but that it just assumes that they have more stuff that as you just assumes that what you're saying is true that they were so overwhelmed that they didn't have the opportunity to look at it  i understand what you're saying but i think that for him my position is that that does the same thing that the government is doing which is blame the defense is about blame defense counsel for not knowing that this information was there and looking at it and getting ready for the trial and that disclosure with thirty five hundred material can often be satisfactory and so in hiding that when you get it five days before trial or however many days certainly before cross examination and if you don't have enough time to look at it a court would expect you to say i need more time and if it if that's not say that the court would have every reason to think you're ready to go ahead  and so in that sense that's it's it comes close to being a forfeiture when you don't you don't say not i haven't got it but i haven't got it in time to review it so i think we're having trouble understanding why there's why there's a true deprivation here well so i mean my time is you're not saying you didn't get the material saying you didn't get it in enough time but that was the district court so there's there's two there's two things to look at there and the first question is for first we have to say that this this falls under barry i believe it does if it falls under brady than it has to be disclosed in time for effective use that was diminished from the moment that the government responded to my client's motion two months earlier and said please give us the brady material on this particular witness no it's not man enough time for use if what you have been able to do is review it and you haven't spoken up about it that seems to forfeit the point well i did there's never well but i think it's an important that's an important point because and we don't i don't have anything from trial counsel that says that he didn't have enough time to review it through well what i can tell you is when i was brought into this case the first thing i was start going through all the material and when i saw this issue i called defense counsel and i asked him if if what i'm seeing is correct am i missing something nothing that he said to me  made me believe that he was where i understand i'm simply saying that when he asked for brady material on this gentleman and the government said it there is none if the court reached my first point and says ok this these documents fall under brady then from that moment of the response to the eliminate motion he was entitled to rely on that as as a representation that this did not exist i mean that's the bagley case says that so when he then gets the thirty five hundred there's no reason for him to think that there should be any extremely impeaching material in there so he would just go about it as normal read the prior testimony and his cross examination was all boil i don't know what defense attorney who would read a document that was prior statement that the witness gave to the police to you  statement nothing about a previous statement to the police that he was to assume without any basis in the record the defense counsel didn't do their job i'm asking you to look at this record government made please the court my name is jared loughner i'm an assistant united states attorney in the southern district of new york i represent the government in this appeal as i did at trial if i could your your response and your br you just take that off before we go further yes judge i'd be happy to and just to be clear it's two points one is that it was disclosed obviously the second point it was also the materiality point and i think your honour's the materiality point is what you're asking me to address well yet you tell us in your break that no matter what happened to the trial there was overwhelming guilt that the jury could have found and did find that mr nelson committed these murders yes your honor so so one one of the first point make is this material was disclosed and the record indicates that it wasn't fact reviewed by defense counsel so there was no disclosure failure the second point we make  concerns the relative role of this allegedly suppressed evidence which was produced to the rest of the case the primary the core evidence on the murder in this case was electronic evidence security camera video cell site location information and call records as well as a different cooperators sample of who identified the defendant in the security video so we tack through kind of the brief timeline of what that evidence talking about that the video that shows even the bullet tracing yes your honor and i think our brief addresses this on that in two areas one is in our summary of the facts first are factual summary first talks about the drug dealing proceeding in this murder and we talk about this kind of altercation of a before the murder and the last section of our factual summary description describes the actual evidence of the murder which i'm sure the court noticed really relied almost entirely on call records security video in the cell cell site location information we also address these facts discussion of the materiality of your more teases testimony in relation to the other evidence in the case also in that kind of subsection of the brief and here's kind of a very short kind of shell of what that evidence showed so first at eleven thirty about forty five minutes before the murder there's calls between nelson and the victim rivera they call each other in their different parts of the bronx from the location information the and then after those exchange of calls and by the way this is the only person in the hour to happen for the murder that the victim of errors talking to you then proceed to the same location in the bronx and their cel location literally overlaps or in separate places they go to the same location after calling each other then they proceed together to the murder location so that's the first point is that the evidence shows they met up late at night and then where jason or vera told senior vera's family member we are going to go pick up money debt money from from a maze which is nelson so those that we know that this meeting is happening and they all proceed to the murder location together then there is actually video of the murder the murder occurs within a vehicle while it's still moving in a car crash two men run out from that video you can see the murderer running away from the murder now this ties up to other critical pieces of evidence i recognize and identify the quality of the video it's a little grainy so i think a layperson looking at the two you can tell that let me kind of break it down a bit you can see the murder running away he turns a corner stops and looks up at a camera he does a grainy video we can tell he is a beard you can see his body shape you can see is general facial features now there's two pieces of evidence that are critically that they need to be considered that evidence that are that are critically important one is cooperate or jonathan sambo who's a different cooperator than his that issue with these alleged suppression issues was the primary drug supplier of nelson they were close friends they had been such for two years was able to look at that video see the gate of the murderer walking away see his face his body shape and identified with certainty that that was the defendant the murder was the defendant that's the first piece of critical evidence about the video the second piece is the f b i actually sent one of their expert cell site technicians out to drive the unique path that the murder ran in the video and there are ten eleven twelve proximately different security videos a kind of line the path the escape route that the murderer took and you're able to see it basically for ten minutes after the murder where he runs because they've ran when he as he wrote ran down the block took several turns ran around a giant park loop the f b i drove that route to see what cell towers does someone hit when they're running that precise route in the bronx and the f b i agent said that there was a sequence of three cell towers nelson used first one for about two minutes then another for about two minutes and then another's cell tower for two minutes and if that happened even if he's not using his phone he has uses phone and in the video judge he is using his phone you can see no other than the murderer pulled his phone out and as he's running on the phone and then he's texting on it later on in the video so you know now the murders using his phone you know the route he love he took and the f b i simply used their technology to kind of to retrace that route with their monitor and see what cell tower my hitting as i'm running the same route as his beard man and exactly to  there is a unique signature which also because of the unique elevation area the f b i agent said this is the really the only area in the bronx because of the elevation changes where you see this kind of sequence of these three cell towers because they're kind of different locations i'm in the bronx it was a persuasive match so not only did they close a severely close associate of nelson look at that video and say that is the defining that's nelson with certainty but also that there is a unique cell site electronic signature that showed that that bearded man who matches nelson's to his appearance in all material way is including that big bushy beard body type facial structure  that's the evidence it goes to the video and lastly nelson dropped his phone which he had been using for approximately four months at least thirty minutes after the murder before the victims families even knew that they were dead so that and this was clear in our summation in the summation he made clear that this is it was really an electronic evidence case showing who actually killed and murdered so regardless of anything else about the the context they were not the person in the car with him with them there was another person yes there there was an accomplice who was on identify judge you know it was your damage that's correct as there was no one was charging the jury never knew up so that's that's the evidence the murder morty's wasn't there he can't testify to any of those facts that was the core critical evidence of the murder why didn't you turn over thirty five hundred materials and so judge every violence case presents a safety concern this one i would submit more than than most two points on that first of all this is a double homicide where the evidence showed that one of the victims jennifer rivera was killed because she was a witness that was the only reason she was killed there are obviously extremely extremely serious concerns about when the safety in this case beyond those even in the typical murder case also there's still a question of this in the briefs there was kind that was the balance that was struck here and the record shows though that it was sufficient time for the defense to review it the defense counsel stated on the record the first day of trial he read these materials they were produced as the court observed earlier murder evidence that is an important issue here it's also the substance of these materials and the other piece of information here morty's testified about lying to a judge in court on a prior occasion on he had he said he had been drinking for hours at the time he observed this interaction so there is ample pietschmann evidence and as as judge of all pointed out whether or not jasmine who is one was in the car is kind of out whether that the car that drove by was red or blue it is not a that reason also and also it's not even she wasn't even a position to perceive some of these events when nelson goes around the corner and makes a reference about people think i'm scared jasmine guzman wasn't there for that and it's unclear whether the interaction between nelson and rivera was simply through a driver side window and normal voice it's not clear she would have even been in a position to perceive those facts so in light of the role of care more t's in the murder evidence in light of the other impeachment evidence for gere morty's and in light of the value of this impeachment evidence which we would submit is frankly not significant there was this this was not material evidence and more importantly though it was disclosed i'd like to ask you a couple of questions about the the double hearsay statements of him and sandy are reporting the statements of jason that he mentioned in any way in the briefing the hellman rule which we relied on in very similar circumstances in the person case and i you familiar with the with the parts go case or with the hell died made a statement of intention to go do something in the hellmann case it was that he was going to kansas i think for some purpose in the person case i'm if i remember correctly it was the it was the victim of the murder who who had said that he was going to meet the defendant who was convicted of the of of of the murder i was surprised that nobody briefed the hellman ruined person going i wonder whether both sides might give us a letter about that of course they would only cover jason statement it wouldn't cover the hearsay of ants and the statement but it might if these cover one of those   the second thing that i want to ask the government about is that you argue that this satisfies rule eight zero seven and rule eight zero seven requires that the that the  have guarantees of trustworthiness equivalent to those that apply and rule a two three and a two four and i have a little trouble seeing that that that aspect of the rule is satisfied  my inclination on reading your brief was to think that you failed to convince me that that aspect of eight zero seven was satisfied i would have a hard time saying that the guarantees of but i wonder whether that would matter because of the extraordinarily persuasive and overwhelming evidence that you are outlining earlier in your argument i mean if i had to if this turned on whether radio seven was satisfied that seems to me to be a precarious position for the government anyway what do you have to say about yes or no as a couple points that we do obviously argued the harmless error point in our brief which but i want to dress again as i discuss the other evidence just earlier i think i would make two points here first of all this is that obviously the priest discretion standard we think the judge covers within her discretion and in terms of th brief it doesn't appear that they are challenging there's two layers of hearsay but i think one is on challenge your i'm the helmet a rule of phrasing i'm it's not a phrase that i've heard the hellman rule but i do have the stamina future intent jason said to sandy that's the first layer of hearsay i'm going to go pick up money for a mason substance i don't believe the defenses challenge that in their brief they challenge the eight zero seven rule judge code admitted that first layer of hearsay as a statement a future intent from what your honor describ about that case it seems like that's the same exception so i don't think that's the subject of the defendant's appeal but in substance stating i'm what one is going to go do who's going to argue they're saying it's double hearsay meaning that each of them was hearsay a score statement of future intention is another way of putting the hellman right so so judge that arguably covers the first it doesn't cover the second the defendant was argued was objecting to double hearsay which means both jason's hears that it for the truth of the proposition that he was going to meet a maze and sandys stay out of court statement the jason said to her i'm going to meet a maze as judge so if i could just each of those chains and turn that part of it i don't think they challenge that link if that very likely covers equivalent to two or three to four indeed maybe included in a right and i think actually that that first link judge code admitted that under eight of the three so that's not an eight o seven issue there that's not i think so right so that's the second part of statement and here you know is the statement that of sam and sandy recounting statements to a number of people for kuapa three cooperate hers i want civilian witness these statements were made by and sandy immediately following the murder of her oldest daughter she was deeply and i know you have to be explanation that he would be more inclined to lie to the police you still protect other criminal activity whatever but that's that's the question is how can we say you know seven is satisfied when he's told this when he's given a consistent account and in this case in light of who she was speaking to i mean and it's not just an explanation i think it's a robust one this court has found in the past that statements to the police the statements to police under this court's years prunes that are the least trustworthy because of that incentive to lie is when one is among ones coconspirators or close family members where that that concern about being candid isn't significantly lessened and that's it not it's not just that kind of who one was speaking to it's way in this woman was deep in the throes of grief this was a stablish in the testimony her oldest daughter at had just died she had absolutely no reason to lie to a close friends and family member about what immediately preceded their death there's absolutely no reason to fabricate and in terms i mean in terms of what the hearsay rule is concerned about its course fabrication whether someone could perceive it and so forth she was in a position to perceive the statements she was on talking to jason rivera this it happened only twenty four hours before his allow her last conversation with her family members of for the murdered and when she was talking to these cooperators of hers and they were grieving they were literally on the way to or at the funeral i think it's hard if they mean we talk about how this is close to other hearsay exception exceptions utterance one it's a difficult for one to imagine a circumstance where one is kind of you just said essentially so emotionally vulnerable and just speaking from the heart from the mind is when you are at the funeral of your own child is that really a circumstance where one is going to deliberately fabricate information about what the last thing they said you was of course and that's precisely what eight o seven is meant to deal with this has occurred the exact same guarantees as an excit statement in light of a mother's grief and it's in terms the police statement again you know the police statement itself makes clear that this was a pretty hostile interview there were statements where she was missing long after the murder was the police tape and the police concerns based on the circumstances that sandy's lying is making this up there's actually no reason to do it and based on her motional state this is just not something so i'm going to fabricate under those circumstances in terms of the perception issue the ability to perceive accurately again it was a conversation that she had with this individual and it's to a close family result there's the concerns that the hearsay rule looks to none of them none of them are implicated by sandy statements to  the cooperating witnesses and in addition to the excited utterance exception these statements are also similar to some other kind of hearsay exceptions one that there is evidence to record that sandy had stored drugs and guns for members of the conspiracy they have some of the coconspirator statements and this is a trustworthiness that comes along with that when one is you know speaking among thieves there's a certain honesty that comes from that and that does not emerge when i want to speaking to law enforcement when you yourself have kind of been assisting the conspiracy including and drew and that collection and also there's a degree of a statement of kind of against people interest here senior vera was part of the efforts to collect this debt money that's another critical reason why the statements to the police you know i think those states there's a very good explanation for why she held that information back she was part of the debt collection efforts the debt collection efforts that led to this murder and she also told the police that jason rivera was no longer  and she was kind of the information center between symbol who is in jail and jason rivera and other people who are out of jail so she would kind of speak dissemble in jail and provide information to those who are out of jail and collecting on these drug debts so not only has she stored drugs and guns for members of this conspiracy but she was also them helping them to collect drug debt at this time which is what led to these murders and she told the police jason arguing that this was a statement in further coconspirator judge i think that to me that was not argued at trial and i think there are reasons why so i thought that was are going to trial but it certainly has so it certainly is very it's certainly similar to rationales of why but i think the facts frankly as we talked to read there are there is a good argument that that would be the case there was finding on the record that are a nelson the defendant was in the same drug conspiracy as as jason rivera parked with jerry told that you as part of the collection of friends judge i believe that's the case i would have to check the record though i would i would i want to make the representation without looking at the record i believe that's the case but but i would want to confirm so for all these reasons but you know even with that when there's a mafia war an internal war and people are at odds we certainly sanioura very would not have viewed herself as being you know alive with nelson and even when there's a dispute internally and their statements it's still about the war and resolving oversold your recap of the how powerful the evidence was in saying that the the the video surveillance and all that shows that he was the murderer because there were two people in the car another one was apparently a confederate of nelson and they both fled so what was the video shows what which door of the car nelson fled from was it the door that was directly behind jason so judge the court's time so but i do think it's important to kind of explain the details here the there's a number of videos on from this area and there is a video that the murder happens inside the car and one can actually see the mu other the accomplice got out of the passenger seat rear of the vehicle and and nelson and kind of fled as it was north and then around this circular park and that's the path that the f b i drove to simulate cellphone to see me the charge the accomplice nor had him testify to cooperate or judge the accomplice was not charged and there is no evidence about the identity in the record at trial but it's really judge and i hope that addresses the court's question the rear passenger side door is opening and you can see then you'll start to get out as the flashes occur so i don't want to i would like to check the video but at least some of them are occurring i'll put it this way i think it was very clear based on the video that it would be physically impossible for the accomplice to have been been the one who actually fired the gun in light of the muzzle flash evidence all right that's will be a good place to add thank you very much thank you judge and so i know it's been a understand your honor but the government just stood here for i think it was sixteen minutes saying that the video shows the murderer was the defendant and that is not what the video shows the video shows someone leaving the car that person was identified as my client but it does not show the murder and there is no definitive last now i e it shows while something else or someone someone exiting the car the reasonable inference would be that someone else is in the car firing and they say that when that person exits the car he's got a full beard built akin to your client and that that's the person whose movements are traced in a way that parallel your client's cell phone what parts of that do you disagree with i disagree with the characterization that the murderer was the defendant and that's the that's the conclusion that i understood how powerfully compelled by this evidence but what what part of the evidence  laughing somebody else is already out of heart so somebody is in the car and that person when he gets out of the car there's they're saying can be it can be inferred it's your client from all the tracking right so let's let's say my client was there let's say even if i wanted to concede that let's say that my client was there that he met up with jason that night in the car your client was in the car well let's say according to the tracking information they were in the same place and let's say i  stopped disputing that which i don't but hypothetically if i do that in and of itself is not evidence i think to convince a jury so how does the government push that over the edge to get the jury to say ortiz is the only person who talks about and that's why the government says in their opening statement if the defendant didn't pay up the guns would come out so what is the defendant do he makes a decision i'm going to get jason before he gets me then they closed there with their summation the confrontation over the drug debt earlier you know the defendant had a motive then in rebuttal you know about the motive you're heard about the threat of violence this was not the allegation here was not that my client killed jason to avoid paying him the money it was that he killed him because of that threat so he was the witness who testified that it looked like your client getting out of the car by body  that's another reason i think that the ortiz reading material may have gone unnoticed because they were so focused on samuel at that point because samuel a did provide a much broader spectrum of evidence he was talking about a lot more things and i'm sorry to cut your case that absolutely not had the government either given the were tease information sooner or at least identified it to the defense and said hey these documents are significantly impeaching of the story he's going to tell a trial you should look at them i don't think we would be in this situation  it's what the meeting was about who gives what the government has described time and again as the motive and the the reason he is so critical is because nothing corroborates what he says about that except himself which is also the same problem with this death threat testimony that was never noticed in advance and it comes out of nowhere and the only thing that corroborates the fact that it even happened is ortiz saying so there's no record of it there's nothing this witness gave t critical pieces of information for the government to argue you know on to base its case on and there is nothing which backs it up and the things that undermine his credibility were held until the last minute and then not identified and this is an office that in and i'm assuming the panel has seen my motion that was granted about the judicial notice this is an office that has admitted that they have a they had a brady problem and that was in a case related to good on stand discussion with respect to the government's giglio obligations of when they arise because witness mapes on a witness may die the government may choose not to put on the witness which point the fact that he can be impeached is not material and so that that is the underpinning for some of the precedent that suggests that as long as it's turned over as thirty five hundred material the government has generally satisfied  well so when would part thirty five hundred obligation doesn't exist doesn't arise by statute until the witness is finished his direct examination but no district court in the circuit i think allows the government to wait that long and precisely so that counsel will not have complaints that he wasn't given the material in a timely manner so i'm just hard pressed to come back to your very first point but you got it five days before trial eleven days before cross examination how you think you even have a brady giglio claim that you were entitled to it any time soon or well i think that that would lead to the conclusion that there can then there is no brady right to impeachment material here it is it's just a question of with respect to a witness the person has to be clearly a witness and there has to be an inconsistency that's what makes that's what think that's reasonable judge because now you're with this case right so the government i guess i wasn't trial counsel i don't know i'm looking at this record i don't see how there was ever question in their mind they were calling this witness far they needed him to survive to supply the crucial fact and they needed him to get this death threat in which again i have tremendous problems with that death threat testimony but there was no question he was he was going to testify there there was no question he was going to testify to the extent that the defense knew made this in limon a motion asking for his brady material i mean that's for understood but the defense didn't ask for everybody i asked and right they were keyed in on this one person so i don't think it would be i don't think you can draw a conclusion here that the government wasn't sure at any point  t this witness was going to testify and again anyone looking at this first statement where he says i was in the car when he testifies to trial i was not at the car anyone  would have known that that is has such impeachment value that it has to fall under brady and even if they weren't sure they should have turned it over and out of it out of an abundance of caution i mean that's the that's the d o j guideline on that  o it just i don't see how anyone could have looked at this situation and not turned it over and we see the result which is that the defense did not use this at all  respond within ten days at the same time thank you very much well turn