morning your honour's minimis india clock you watch and i'm representing defendant appellant john garcia the fourth there are three issues before the court today the first concerning the denial of mr garcia's confrontation clause rights under the sixth amendment as the panel may recall mr garcia finished out asking questions on cross examination and then the prosecutor came back and asked thirty six questions on redirect at the end of the redirect the court started to dismiss the witness and mr garcia's counsel asked me i asked one more question the court said no and then directed immediately that the government should call is next witness w the question going to be that would have had a material effect in other words even if it was an error why wasn't it harmless is the question the one question going to me you know that's hard for me to say i was not  trial counsel and so i can't really ask what trial counsel intended to ask but you have to make a showing right and but you know i would point out that the court really didn't allow mr domingo who was trial counsel to make a showing because the make a showing now you have to persuade us that question would have made any difference and you had months or years of trying to think about it so ok not what would he have asked but you tell us what might have been asked that would have made  different so what could have made a difference first of all is that this witness was a crucial witness as even the government admitted at trial they were the government was very dependent on cooperating witnesses and specifically mr garcia's case there was no law enforcement identification of mr garcia being involved in any kind of drug transactions in fact they did not even know about mr garcia and still they executed the search warrant on the redirect attempted to rehabilitate him by clarifying some of what he was getting on the plea deal of and he agreed to testify truthfully in the like and so that the district court concluded that that wasn't  was all relating to whether you know how impeached mr craig was so that's why it's not clear from the transcript that they would be any further question would presumably just be impeachment again so so that was why i had a question about why isn't even if it were an error in the district court was wrong about it not being a matter it wasn't harmless in the scheme of the trial well and again i can't really make a record on what would have been asked because that would have been bringing in matters outside of the record because i wasn't the trial counsel you can you can argue what might have been asked strike right well and that's why we're waiting to hear and right to have no waiting for what that question  tour the government on redirect brought out that there were these text messages that he sent to the codefendant foster and it would have been helpful for mr garcia if his counsel could have asked what were there ever any text messages with mr garcia why couldn't them uncovered on on cross examination work we're talking about a recross right should be focused on whatever new came up during the redirect i'm not sure what you came up with this thing about foster was a new it could have been asked about before right but the text messages was something new that was brought up i believe on redirect in the dissent in the court by not allowing defense counsel to ask people one question after the prosecutor has asked thirty six questions left the jury with the impression that whatever the defense had to say didn't matter redirect is not uncommon recross use it's like in this courtroom you'll have a chance at rebuttal and your colleagues will not have a chance to speak after you that's just how it is so so tell me that there were thirty questions asked for thirty six questions i asked on redirect doesn't tell me anything recross should have been permitted since it usually isn't well in this case like i said there were these questions about text messages that didn't have anything at all to do with garcia and it's possible that defense counsel could have brought out the fact again that this was something new that could be not the only communicated with foster and again as i stated before you know he was a very important witness to the government and so the fact that defense counsel was not allowed to get into that at all is problematic moving on to the second issue the court also impermissibly allowed for the government to introduce a prior conviction that was more than ten years old and this conviction was not a conviction for possession with intent to sell or distribution it was a conviction for possession of pipe with a tiny bit of nothing fed mean residue in it and under hawaii law mr garcia played guilty to promoting a dangerous drug in the third degree under hawaii law that can be any amount of drugs the problem here is the court seemed to indicate that it was allowing deciding cases on possession with intent to distribute in addition the court also seemed to find that this case was not to assuming their admission over his prior conviction was there are were so hard given the fact that there are several witnesses who testified to his direct involvement there were several witnesses government says that it is needed to prove that garcia knowingly posed yes the math and said that the this prior conviction shows that he knew that what he was handling was half so why is there a prom well there really wasn't an issue that there was meth discovered in the apartment and there was no there was no matter what apartment and there was there was a huge and right so the government has to show every that's at least the government's argument and so the prior conviction they say goes to whether he knew it was ethar not just agree with that well i know that that is the government's burden and that is i know that that's the government's allegation but in this case the prior was for such a small quantity and so i think you know let's assume just that that's one of the factors when the four factors of the government has to meet but even so they can't meet all the other factors as well especially given how remote in time this was and how does some were it was to the instant case and there are plenty of cases that say you know a user conviction is cannot be used to prove possession with intent to distribute or conspiracy it was a sometime for rebuttal yes i would thank you i hear from the government of good morning when name is chris ellen como thomas for united states with regard to the constitution cause the first issue of the court the court essentially us the million dollar question what was the one question that defense counsel wanted to raise you know at that had to be one heck of a question considering the hardness or analysis that the judge brought out of the the cross examination was fairly extensive and it covered all the motivations of the witness showing chronology had to lie covered matter in the redirect surrounding what she calls text messages what's your response to that well you know you're on her own with regard to the text messages there was that it was a really wonder to questions but that was the extent of it direct examination was purely to show that we just short of evidence we didn't affect his testimony we just tried to help him recollect that information with regard to the second issue the park addiction the government believes that all the elements for the park a vission to be admitted were met what's important to realize is that this case was actually developed in two phases the first phase is the first phase was called one which was purely an execution of a search warrant that was extend the case now over time based on further investigation co defendants in unrelated cases brought up their involvement with the defendant john garcia as a result there was a superseding indictment that added the conspiracy charge so prior to the superseding indictment it was a very relevant and critical question about whether these drugs found in the apartment right near where garcia was found to be sleeping whether he had knowledge of that it was very rather that now even after the conspiracy charges that it that's still an important element because we still have to prove count one which occurred on a single day on the day that the search warrant was executed so his knowledge the lack of mistake and accident that element was still critical to count one and that had already been implemented it was already in the language and prior calls all for mr garcia had breached that issue and it submitted his brief and the court expressly stated on the record that he had read it and that considered it and then we have a second call so miss coggan watto who appeared at the sentencing who did the same thing really she briefed that same mitigating role section of the sens guidelines and you can argue that and then to say that the court didn't consider it really doesn't make any sense because a court saw it not only once but twice and expressly stated that  considered all the factors the law of that the defense counsel s levo even within that opinion the ninth circuit says that these factors should the court should consider and that case can be factually distinguished from marketers because in this case that sentencing guideline provision was retroactively applied so that was a case where the court didn't have an opportunity to consider the changes that was implemented in that sense a guideline that's not the case that we have here a minute seven ninety four was already implemented it was already in the wording was already considered by the court and there is no case law that the defendant cites or can't cite because there is no case law that says of the judge has to actually tick off every factor that set forth in that sensing guideline reduction there's no  that the case only states that you should consider it doesn't ask for anything more than that and the court expressed he said that it did that's the government's arguments if there's any questions directly not thank you thank you very much your honor is addressing the last argument first because i didn't get to address it the first time around the issue here is whether the court identified the correct guideline and interpret it correctly and here the problem is the guideline w amended in two thousand and fifteen and both the probation officer and the district court stated things on the state of things that seem to indicate they were applying an old version of the guideline the probation officer first indicated that this guideline should be applied infrequently citing application notes i believe to to the guideline that guidelines as the application of does not state that in fact the commission said one of the reasons they amended the guideline was because the guideline was being applied too infrequently in addition the amendment to the guidelines stated that a defendant should be considered for this role even if they played an integral or part in the offense but didn't the trial judge say he considered all of the factors listed no not essentially the what the district court said was that he said should not be considered as kicking somebody out from the guideline and again even though defense counsel before me and also myself brief the five factors the court did not go through those factors and there is case law that suggests that when the defense is raised to non frivolous argument the better means to deal with it is for the district court to specifically address those arguments and to specific guidelines or statute and rejecting it here over time yeah thank you thank you lee appreciate the arguments and i case united states garcia the fourth