matter this case raises so many extraordinarily unusual factual circumstances that probably the most prudent way that the court could deal with this case would be about the circumstances well judge number one the the government had reason to doubt whether either of the defendant day of trial that the one material witness will refer to as matt which they thought that she had been deported the day before trial they learned that in fact she had not been deported both  and that stipulation in this case is completely different from those cases where where the stipulation was found important particularly i'm looking at the the case that was  tell your honour's that the court should not and cannot look to the stipulation because it was not argued it was not argued or submitted below for the purpose of admitting the depositions  government trying to get or makes it hard to say that your client was prejudiced if your client entered into a stipulation that assumed these people were not going to be available and i just have a hard time disregarding that the stipulation as as the court can see in molina there are two different stipulations at least two different civilizations that are used in the and the district court in arizona molino also came from the distributors own in molina when you focus on the question i posed how is your client prejudiced if your client entered into a stipulation had an opportunity to cross examine and assume the person wasn't going to be available again so what's the problem because the stipulation specifically did not agree to the admission of  deposition all that the stipulation it was the deposition for the fight to capture the testimony of somebody who wasn't going to be available at the trial that's the purpose of the deposition but in case the person is not going to be available to trial it does not relieve the government of its independent obligation to make reasonable efforts but it doesn't answer the question i posed which is your client stipulated that he was going to be unavailable ought to have known that you couldn't count on actually getting him present and went ahead with the deposition so how was your client prejudiced he did not stipulate to waiving his confrontation rights he did not stipulate a waiting for an answer to the prejudice question if your client couldn't assume that the guy was going to be available deposition is is much less than what it is while it might be a substitute for under the sixth amendment there's a lot to be desired is all theory i'm hearing nothing deposed circuit's decision is clear that a couple of the reasons for requiring the government to make reasonable lefferts is that after a deposition is taken the there's a lot of independent  first the government has to prove it by clear and convincing evidence and it's got to be expressed and all that this stipulation dealt with was an evidentiary was it was something to do with the rules of evidence this stipulation was not the kind of stipulation that was entered in molino where the case where the judge said hey you can't you can't enter and it's relation and then come back after after you plead guilty withdraw your plea and then the witnesses  gone what is your standard of review here let's assume the hypothetical and i'm not saying that you're agree with it that the evidence against your client if you sort of removed the deposition testimony was nonetheless very strong is our standard of review harmless beyond a reasonable doubt are you saying that because you're raising a confrontation clause argument that it's a structural error that requires in and of itself for personal or is it different from cases like a wednesday as where there was a confrontation clause issue is armistice beyond a reasonable doubt as i've laid out in my memo but the government didn't raise it didn't raise any arguments to it i haven't been able to respond to it so harmlessness and i think that was as an understanding the government's understanding that the that the harmful was so strong that there that the government really had to rely on that on the merits of the arguments i'd like to start and i did it during your argument now you've raised things that perhaps might have been developed with respect to your by your client are those aspects you know further investigation other issues or trial that this went to trial that might have developed does that appear anywhere in the record throughout the record judge throughout the record and i very copious list all the different ways that the material witness depositions versus the between the two individuals were contradictory and inconsistent and i raise all the different ways that the that the that there deposition testimony was different and contradicted their testimony with respect to the their statements to the officers when their first question is i would like to reserve as much time as i can without wanting to while they still want to answer a question for for rebuttal the right lines of your have placed a court on bob miscall from the u s attorney's office in tucson and we have two united states in this case there was a stipulation entered that the material witness was unavailable there is no indication in the record that stipulation was in the two different stipulations that are used is when we have a case that we proceed under what we call a fast track approach the material witness to depositions actually aren't taken in that in that scenario in exchange for getting a very favorable playoff are we the defendant time to stipulation saying that the statements the material witnesses made to the agents would be admissible that's the one stipulation we use in the stipulation with  deposition in a situation where the depositions are actually only you don't have a deposition that you're taking then you put in the crawford waiver we get a waiver and they they specifically agree that the statements the material witnesses made to the agent to the time of the arrest would be admissible at trial ok in the cases where there is a deposition done we do the stipulation that you've seen in this case which is basically the witness is unavailable and since the when is the stipulation was when it was unavailable the defense attorney clearly had the opportunity to cross examine so the requisite for admissibility are present what is the evidence of writer wrote a letter to the witness in care of their appointed attorney asking the appointed attorney to contact them and ask if they want to come in to the trial at government expense the attorney indicated that he was unable to contact the witness that is a reasonable good faith effort and contrary to the situation in the rodriguez case in this case case that the court recently decided the maid the maid key factor was the material witness attorney did not have an addressed for the witness but the government did in this case the court determined and stated that the material witness had some contact information for the witness and that was at the hearing on  february second i believe excuse me april twenty seventh at page thirty five and thirty six of the transcript of the april twenty seventh from scripture i'm sorry so that's the i think the evidence actually that the defendant brought up about the other material witness was located by the government shortly before trial shows that the government's approach is affective in determining whether the material witness is available i mean we found the other witness and she did appear personally a trial so the deposition didn't have to be used h ere wasn't there a change in trial dates yes and isn't there an issue as to whether the change in trial dates was communicated the sequence of events was at the time the what the government wrote the letter to a material witness attorney at that time the correct trial date was listed only in the letter a few days later at the trial was continued  moved back two weeks since the material when its turn he stated that he didn't make contact ultimately with the witness the fact that the trial date had been moved doesn't really change anything in that scenario i don't think i don't believe but in this case and again we did have the stipulation there was no evidence stipulation was involuntary or a knowing which is required for that and it could get out of the stipulation and i'm clear about something in the record and that's  pages eleven fifty eight to eleven sixty and in the record there is a question and issue regarding whether a stipulation would be admitted into evidence because with respect very contrary to the defendant's argument this it was leg at a time when the just record and the defense counsel convince the court that the stipulation had to be entered in open court and that's actually not correct for a stipulation of the court's case law in the court found that the witness was that the government had determined that the witness was unavailable so but yeah the court that was the same stipulation actually right so in a sense the argument  under the the facts of this court uses to determine whether a statement is a stipulation is voluntary the stipulation was voluntary he was represented by an attorney both the defendant in the attorney signed the stipulation considering all of those factories the stipulation was valid it's hard to imagine a stipulation that would not be valid into the circumstances actually with the when he has a representative signing with an attorney signing the stipulation with the defendant and the stipulation clearly stipulated that the winter when this was unavailable even if looking at the  meant to be a clear record and to give to give kind of by way of analogy say the parties stipulate that certain records are admissible under the business records exception the government does not then have to establish all the requirements of the business record exception to get those documents into evidence the stipulation that requirement and that same here this is a stipulation that the witness was  the person who's going to introduce a business records i mean talking about civil litigation verses you guys have been so used to business records in criminal cases judge i mean you do you think it's completely it's terrible analogy that it's ok how do you respond to your brother's argument that you have ways waived the harmless error analysis i think with the stipulation counsel what the prosecutor did in this case was the antithesis of reasonable efforts what the prosecutor did was he asked he said he he he got it made a phone call to the  attorney who told him basically i've been unable to reach my client or no questions about well do you have an address well did you talk to him do you talk to family members if you have an address can i get the address they did nothing was was prejudicial to your client the best the best case what is the prejudice that said best case for prejudice that you have in this record based based on this record the first the defendant it was clear in the record that the that what was in fact in the country we don't know whether he was deported and had he been available to testify he would the the other material witness testified literally in some cases five or six different completely contradictory things about issues which very significant fire was convicted on the charge as to the other witness speak because they had they have the deposition of the other individual which in a very general sense corroborated her general story but since that time the defense developed all of these in consistencies none of which would have matched and would have given the defense the opportunity in order to develop to develop the record with the material witness to show that the stories that were being given by the two material witnesses were completely  record on that i'm glad you raised that because the record on that was was so different with respect to the two with the two two different individuals with respect to the to the material here who was not there were no reasonable efforts made to bring him in what he said was that in his video deposition was all that the what the defense the dead defendant gave him one instruction that he that they never informed him that he was an illegal alien and that the defendant said say that you are u s citizens that's it the during the other material witnesses testimony she developed she added a whole slew of different things he told us to say that if we were that we were on our way to to say that we were on our way to tucson yet he never translated it to them they didn't speak any english he said i list the litany of she says four different things about it in addition the most critical one of the most critical  facts is that at the time that the individual that the material witness both material witnesses were were interrogated after their arrest  they both said in their video the positions that the that the that the agents told them that they were unhappy with their answers and after they told them that they were unhappy with  answers and they also the may be good cherice the material witness in question said that he knew that if he told them what they wanted to hear that he would be able thirteens and other records that were filled out by border patrol had been changed to reflect to reflect a difference that supported the ultimate story that came from the material  can challenge mr chad as originally and this was conceded by the government originally those records said that the data entry was seven fifteen and that the the date  marked out and changed to seven twenty this was significant because the material witness maria who actually testified in court just stuck to her guns throughout the entire interrogation despite the fact that the agent told her he was unhappy with her statements and agent couldn't remember if he said that or not and she stuck to her guns saying they'd been there for fifteen days they crossed on their own they had rented an apartment for fifteen days and that fifteen and then they were brought to this individual who is my client who's going to give me a ride to sign and she said that we met him on the we asked him for a ride he agreed to give us to ride in twos in tucson and she said that there was no coaching or anything done during her interrogation and she stuck to that story