multiple reasons for reversal individually and collectively reasons that combined to render this a fundamentally unfair trial the first reason i want to address is the denial of denial the court's denial of the writ for the witness who all call informant c h s one there were two informants so it's easier for women's number one was inconsistent with the rule with r seventeen b it's requirements and with the sixth amendment right to compulsory process the standard of review here is something that's in dispute i believe between the parties and that is it's abuse of discretion but it's a narrower abuse of discretion standard it's narrowed by the implications of the six the memmott the sims case discusses that and it's different than other circuits application the standard of review so it's important to be date worry are we talking about the exclusion of your client's own statements no i'm sorry the exclusion of the witness that i asked for by virtue of an application for a writ to bring in the informant c h s have permission was granted right it was and then there was a change there was a change it appears only because the trial date changed the the documents that i submitted in support of the request or in the excerpt of record volume two the whole volume is dedicated to that there was a briefing on the issue prior to the second decision so whether or not the judge changed his mind for some reason the parties raised or just changed his mind on his own it's impossible to tell ok it seems as though the discussion he had at on the record on july twenty ninth in which he speculated about oh well you know it must be for the purpose of intimidation or some other reason i don't know is not the reason he ultimately ruled on because the next day there's a minute order saying it was denied for necessity and relevance and there's no mention of some improper purpose that the clerk's order it's a minute order from the judge the minute i'm sorry the judge wrote well it's hard to say i suppose he approved dead with a journalist because i don't think that when there's an inconsistency between something that's written and something the judge s ordinarily we require to follow what he said unless for some reason to do otherwise now the judge clearly was concerned about bringing this person in without any greater showing that it was made and determined for himself that he was trying that you client was trying to influence him so he would testify differently because he'd be afraid and there was no basis for that those reasons ford where was the entire court record that we trying that he was being tried for and if you're sitting there is a district judge you've got a responsibility to make on that issue now you feel that that he was wrong there was a clearly erroneous determination erroneous ok i would say two things i would say the judge on the twenty ninth when we had the hearing didn't rule he said in that hearing that he was going to take another look at things and in fact the next day the minute order issued the reason why i think it's his minute order and not the clerks is because in that minute order he rules on all the pending motions that's not something a clerk regarding salvatore serial korea was denied on the basis of an aqua showing of necessity or relevance the day before when the argument was being had between the parties it's clear from that transcript that the court isn't ruling when he mentions the thing about intimidating or some other of improper purpose this is excerpt of record page at the bottom of the page  i sit here right now i don't see the purpose of it other than maybe to intimidate or send some message i don't know the government then says you know they're moving to aquash the court then says it will take another look this is page eighty one lines five six and then subsequent the minute order issues the reason why i think that it's also unsupported by the record even if we looked at that as a finding or a ruling is that there is no evidence connecting anything my client did with respect to some effort to intimidate or anything else the informant had been placed in protective custody and had been there for a long time he was in a jail north of los angeles about an hour in ventura my client was in a complete other jail in the n b c l a los angeles there was no evidence whatsoever of communication other than the general idea that an informant would have some fears i think maybe like any witness would who was testifying against someone there could be some general reason but there's nothing specific client has connections had connections proven with the mexican mafia which seems to be seeping into all prisons i could see why the c e o would not want to be before him in any way well i would say it's speculation i don't think that the court ruled that way and the next day when he issued his actual written ruling it said nothing about that didn't refer to that in any way could you could you turn to relevance a necessity with yes assume that was the basis for denial  relevant one is that it was he that supervised and was close with and connected with several of the people on the list of alleged supervises the government of course took the position at trial that it was mr tapi that supervised these people the evidence that the informant supervise them would have undercut their theory in that respect and even if i couldn't prove to the jury that he supervised i thought that one person that the this confidential informant was going to most persuasively testify that he supervises the one that the jury ultimately found was not one of your clients supervisors i think there are several people i think that person would have been a really important  piece of evidence for me because if the jury had disbelieved him with respect to roger armin doris the man who would refer to the informant as chief who was always with him who would follow him around who even in the recordings would talk about him and chief and who mr tapi a talk with the second informant about armand our business with him that i think it would have been really important and if they disbelieve him as to him they the jury could have draw inference about disbelieving them as to other supervises but there was more there was also evidence that mr salazar another person on the list was actually crime partners with the informant d geisha as well as very closely afterwards in other words he and the informant were arrested just a few months after the arrest of mr tap the with guns going into some place  holding people up an exploring them ok but why does that preclude your client from having supervise this other person i use i don't see that well i think that it would have it should have been up to the jury to decide whether or not  the government's position wasn't that they shared supervision of these people the government supervision was that mr tapi a supervisor and directed these people and basically controlled the ventura county area and controlled it by virtue of the power he was given from the mexican mafia one of the other reasons why i wanted to present this witness was that he also would have talked about the beach meeting government made much of the beach meeting this was a meeting that they took the position that trial mr tapioca had created and was a meeting at which they said that he was directing the younger people of the gang essentially introduces him introduces the young gang members to him and essentially then sort of hands it over to mr tapioca who's who's in the center of these people so it was a reasonable inference to draw that he was doing all the talking ok i think the informant would have said what if had you called the informant would have said that he was the one who knew these younger gang members tapir didn't he had introduced them that he was the one who organized and got them there that he was the one who directed mr armin doris his right hand the guy who calls in chief to go around town and pick them all up and get him there when we have bits of corroborating evidence so we know this is true we know that there was a mobile home and that mobile home belongs to the informant and that was seen in surveillance photos but what i couldn't get is i couldn't get the agents to identify the driver as mr armin doris who was his right hand the informant would have been able to do that the informant would have been able to say that he instructed his right hand to go around and pick everybody up counsel so so i have a struggle with the same question judge wofford has how does that i think you asked to imagine a vertical hierarchy how does that vertical hierarchy preclude your client involvement as a supervisor i don't know that it would preclude it but i think it would have given me a basis on which to argue that tapi didn't have the total control of this area which was the government's theory but was it your argument that since this was your request of tonight and basis of relevance that in fact this evidence that you've just described to us  would make it more likely yes that that your client's there it was it would have given me a basis on which then to asked to draw the inference that what he was doing in that gathering was giving advice as an older person but not directing them that what is relevant is this evidence you want to wasn't irrelevant it's right that's what you're really coming home to it is i mean i think that in a trial you have to have the ability to tell your story and link it to the evidence and him to have held firearms stockpiled farrant given them to mr tapioca i believe by giving him those firearms he was promoting this gun business we know that the indictment charges mr tapir with are with essentially operating a a firearms enterprise and with and clearly if the informant was promoting that and helping to generate that and helping to make it  access to more weapons that would have been a nice fact for me able to be able to argue to the jury not just to support the possibility of outrageous government conduct but also to undercut the government's theory that he had these vast resources and ready access and was very knowledgeable about firearms finally the opportunity to have mr the informant there to testify about his own separate activities drug activities we know is caught with a large quantity of dope in february of two thousand and eleven we know that he was working with the mr mr salazar we know that he was running around town with guns acting like a thug holding people up so this concept that the government presented that i really couldn't rebut that mr tapi a sort of control deactivate the gang activity in the area by virtue of this authority from the mexican mafia is undercut by evidence that this informant is acting separately on his own doing drugs and guns activity going to save some time i do i didn't get to my expert issue i guess not do that later thank you think focused on talking about an informant who made recordings of the defendant at the direction of the f b i in a long term investigation he was a member of the end of the defendant's gang the defend it was a validated member of i'm sorry associate of the mexican mafia and the leader of the street gang the defendant in recordings that were introduced at trial talked about how they deal with informants he talked about assaulting informants and killing informants there is every reason to think that if this informant was brought before this court there was going to be a safety issue and that was what the judge the district judge did allude to in his statements on the record that he didn't understand why this person was being brought unless it was for the purposes of or some other and he sort of left the sentence hanging but can you back up a step because originally permission have been given to this witness and so what changed it seems like this hierarchy that you're describing was certainly in place and well known in the filed an opposition to the right at that point raised the issue to the district judge there was a briefing on it at that point although the factual information as to why counsel wanted to bring that informant over was not provided to the government so we were arguing a little bit in the dark not knowing what the reasons were but the court found when it actually there were no reasons were provided the first time around there is a requirement under rule seventeen be that embodies the sixth amendment standard that the defendant has to make a showing that the witness is necessary to an adequate defense and when the defendant actually put forward information to try to meet that standard the court said you didn't do it i find that you did not meet that standard and that is what all the all the circuits that have addressed this have agreed it is required to so i guess i am puzzled by your response to the to my question as to why you opposed it you start with this safety concern and i don't see how bringing the witness to to the courtroom to testify in any way aggravates the safety concern if they want to put a hit out on the guy they they can find him that's not a problem as you you know so the safety thing just seems to have nothing to which is the terms that is set forth in the case law and to sort of not to be cute about has he made a showing and i think there is actually kind of two parts there one even if what he says is true does it matter well it did as to the one supervisee right you guys allege that he that mr tapia was a supervisor of this one person and they had they said a witness who would regularly refute that and how is that not right relevant i mean relevance is a pretty low bar necessity i don't know where else they were supposed to get that testimony from so why isn't just on that point alone but i think there are two issues there are one is that was obviously not the only person who could testify about that because the person he's talking about mr armitage are as could also been called to talk about that point so this witness's testimony wasn't necessary i don't think it directly contradicts anything the government said there was no argument made at trial that mr tabular the defendant was the exclusive meter as i think i think your honor pointed out that was not inconsistent with the case presented by the government it didn't constitute a defense to the charges that were actually brought mr tapioca the defendant had the years above him he had people he talked about his being the same level of him he talked about the hierarchy of this gang in many of his recorded interactions yes the c h s was part of it mr amin dars was part of it mr salazar was part of it a lot of other people were part of it the jury only had to find that five people were supervised by this defendant to meet the c h s there to testify about the name five other people that were unaddressed by the c h s so there can be no guarantee that it doesn't speak to relevance before the trial starts you guys allege more than those five in the indictment correct your honor i think that's the other point that is really important in this jurisprudence and i think there is some confusion in the case law we've actually welcome some clarification from the court because i think that this standard has gotten a little bit conflated there is the requirement in the rule is that the defense show meet a burden that the witness was necessary to an adequate defense and then there's kind of a standard that says well if you show that it's relevant that's probably enough that relevant standard goes back to a prior version of the rule that the d c circuit provided that language on and they were analyzing whether the kind of information that the defendant presented was sufficient and then it gets picked up and sort of translated through the fifth and sixth circuits gets to the ninth circuit but it is clearly inconsistent with the way that the courts have actually analyzed this issue when presented with a miss a yes relevance but then they go on to analyze was it material was it necessary did it go to a defense and none of those standards were met here it can't be a bare relevant standard or there is no finality any time seventeen b subpoena is denied or even more significantly a writ is denied the defendant can come before you and say it was relevant to some issue in this trial therefore i should get a new trial and that simply cannot be the case the number of people who have relevant information about a mexican mafia related gang case in southern california is enormous and the fact that this witness may have had some relevant information is not sufficient to show that he was necessary to an adequate defense nor that the defendant made that showing to the district court at the time made please a court mac jenkins on behalf of the united states i'll be brief and i as my colleague pointed out just deal specifically with the admission of expert testimony as to gang evidence here we have essentially two gangs colonia cheek s which the defendant was a have two of the nine days of trial were taken up with expert testimony it was actually less than one day that carried over into two days and that's one of our points he points out that says more than two days we went through the actual testimony and it was less than one day stretched over two days the predominant amount of that time was this gang video which the court pointed out earlier was defendant holding court for around twenty minutes talking about the mexican mafia his leadership drug trafficking killing informants during which we would stop and ask the gang expert when he says wagner you know what he's saying that this this big organization can dismantle the barrio what does that mean there is that type of testimony that extended it but it was really just focusing on the what defendant said and then the background of the mexican mafia our mexican mafia expert testified for a very brief amount of time and i would submit he gave one of the most i've tried mexican mafia cases before this expert gave the most watered down version of the mexican mafia the most p g version that i've seen in a trial because all he talked about was mexican mafia controls the prison they do it the extortion they also have their reaches into southern california cereno gangs which give those gang members outside of prison juice or status gives them resources it gives him personnel he didn't talk about the brutal murders he didn't talk about how many to be in the next and often you have to kill you one of your own or being kill informant there is in contrast to which is relied on by the defense which talks about bribery torture murder that had nothing at all to do with the case that individual was not even a member of that cartel he didn't even go with that cartel specifically here we did seek to narrowly tailor it as we told the court over and over nearly terrell it mary tell it to the evidence that was presented and the words of defendant himself so the extent that the evidence didn't think was brief was extensive it was because every time the defendant said something about colonia cheek s or his people or that he's that he's in this organization that stretches back to the federal penitentiary we did have to explain that to the jury and as well why that mattered because there's two portions of the analysis ok so he's in the mexican mafia we've proved that but what does that matter to our case what does it matter to a continuing criminal enterprise and frankly to the government and i think to the fence that's all this trial  really about whether the defendant led a continuing criminal enterprise but only that whether he led five more people and whether it had significant resources and whether it had over a thousand actual grams of methamphetamine to us that was crucial to show that this wasn't just guy believe in a guy believe in a dream deal who had some friends who had some guns who had some drugs this was essential of ventura county kingpin and when he says i have drugs i can go to mexico i can get you guns i can get you caches of guns i do one hundred thousand dollars a week when he says those things we had to show that he was speaking the truth precisely because the defense argument was that he was boasting that he was bragging he was trying to impress but in order for us to satisfy the c c e elevated elements that brought it increased punishment we need to show that who the defendant was was exactly who he says he was and that's all the expert explained the background that showed the foundation of the power his source of resources and the structure and then when defendant said things and people listen to him it's because he exactly was who they said he was and so we did seek to limit it and circumscribe it and of course also mention that we did at defenses request we didn't object there was a limited instruction limited to leadership in closing argument i did the closing argument i said remember jury there is a limit instruction about this gang evidence you're only to consider it based off leadership we don't want you to consider and you can't consider that because the fed is a member of the gang even the mexican mafia therefore he's guilty of any crime at all and we ask that you not do that so there was a slim instruction the court carefully crafted it at defense request we honored it we highlighted it and we argued consistently with it the quality of the evidence the expert evidence was so prejudicial the government likes to characterize it as brief i put all the citations well not all the citations but i put many of the citations in brief about just how inflammatory it was it was about how high these security threats are it was about how the prison gangs control all of southern california it's about how people would commit violent acts to do that that they had to commit violent acts to do that there was specific references by four people not just the two experts but two other case agents there were only i think nine witnesses in the trial they were all law enforcement officers there wasn't a single a witness in this case but can i ask you mean do you contests there or there need to put on some expert testimony to support the  i do and the reason i do is because i think the case should have been tried on the transactions there was transact there was recorded audio evidence about the transactions which were charged in the case the counsel they get to come up with their theory and to be a leader because he's given this leadership role by the mexican mafia which is their primary argument that's diminished by the fact that there's really no connection to any of the transactions there's no evidence for instance in this case that any monies derived from any of this was paid up to the mexican mafia there's no evidence that any mexican mafia member blessed knew about spoke about participated in any of these transactions there was surveillance all tapioca there's never any surveillance that would indicate that he would meet with anybody in the mexican mafia before or after there were a wiretaps there's no evidence of any conversations between mexican mafia members or associates and him before or after in relating to these transactions that diminishes the value because it diminishes any connection to the mexican mafia in addition they called no late witnesses to testify that they followed him were led by him or were organized by him as a result of his status in the mexican mafia or by virtue of his power in mexico mafia which is the government's theory that people would be more likely to follow him because of this status and power he had yet there's no evidence whatsoever that anybody did so the government didn't even present their informant to say that they clearly have access to that person and could bring him in don't even have to ask the judge's permission getting back to that question because i know i'm out of time i want to tell you on the expert issues my best cases are  reasons the rich should have been granted a should have had that witness the testimony of the expert should at a minimum have been if not extremely limited struck all together  one idea i have for you as although i think reversal is appropriate because of the collective prejudice from the errors come up there is another remedy that is talked about in the cruise  jimenez case which is a rate case and they talked about this difference between when one side or the other they have different positions about what a witness would say and they remand it to the trial court to have a hearing like let's hear what that witness would have to say if the witness says what he says the witness would say should be a new trial if the witness says what the government says case is affirmed thank you thank you very much thank you