well here the next case united states versus moore good morning your honor is made please the court i met words as from the federal defenders of new york for julissa more the district court in this case committed reversible error by excluding important and admissible defense evidence that would have supported the defendant's lack of knowledge defense the sole issue at this drug courier trial was what did ms moore know did she know about the drugs that were in her bag or did she not did she consciously avoid finding out what was in her bag or not one of the government's centerpieces was a forty minute post arrest interrogation by law enforcement the government ended up only introducing about six minutes of that interrogation but more important than the length of the interrogation was the fact that the defense could not introduce important parts of the interrogation that would have undermined the government's claim that she knew about the drugs with respect to the post arrest interrogation there's two separate errors related but sep on at least four occasions in this interview ms moore denies knowing that there were drugs in her bag the defense said judge you've got to let us introduce that because the government is introducing other portions of the to keep portion being added mission by more that her cousin had given her this bag that she knew her cousin had dealt in cocaine that she knew her cousin in fact had sent people to the united states to bring drugs here to the jury's ears that sounds essentially like a confession they would have naturally thought that if someone didn't know they would have said but i didn't know there were drugs in the ba well that's precisely what the defendant said but the district court wouldn't let us introduce that that so that's where hearsay right if if the statements had come in sort of on their own they would normally be excluded as hearsay but this was not coming in for its truth and therefore were not hearsay because rule one hundred and six our timing and for the truth what was it coming in for or is it offered or it was offered to complete the portion of the narrative the government had introduced it was to show she did not now writes or was offered for the trial no it was not your honor it was or it was being offered for the fact that she denied knowledge not for the fact of whether it was true it's relevant because the jury would have otherwise misinterpreted this recording it would have been misleading to just leave the jury as as the jury was left unaware that this woman despite a seventy two or seventy five know and so you should think he's telling the truth even if that is so and that may be so it doesn't change the outcome because are you still comes back to completeness that's right and it's not argued introducers through completeness is you in but it's often words true that is a plus there is a plausible view which i don't want to disagree with i think there's actually a split on this on when a rule one o six statement comes in is it coming in for its truth or is it coming in just to provide  k previously and they checked that name and sure enough that's exactly what had happened on the issue of conscious avoidance independent of whether she said three times in the interview or five times in their view i didn't know it was  never told it was drugs why wouldn't all that of evidence not change the outcome in this case explain how a general denial would take away all those details that she gave to the agents because just to start with with conscious avoidance the question of conscious avoidance is a subjective question did the defendant was she aware of a high probability that there were actually narcotics in the in the bag but then consciously decided not to find out the fact that she told the agents four times in this interview although candid about other things that she didn't know could change the outcome this was not the case of over well my point is that's completely consistent with a conscious avoidance consciously i was never told i never looked in the bag it's not inconsistent with conscious avoidance for which there was overwhelming evidence of conscious avoidance based upon our own statement right well i think i think your honour's point is i agree with you with what you're saying is the jury still might have convicted based on this but they would have had the full picture but the test for harmless error st the burden is on the government to show depending on how the court views it if it's a constitutional violation if it really curtailed her defense and this is not the only this is not the only preclusion that happens the government has to show under chatman beyond a reasonable doubt that there is no reasonable possibility that the error affected divert even if it's just treated as an order ordinary eviden the government still has to show that there is no substantial probability that the ever affected the jury's verdict well let's look at the evidence both experts agree this is a woman with a with a very low i q borderline intellectual functioning she did there's no evidence that she was being paid for this there's no evidence of any cell phone communications or other things she's caught with cocaine in her bag at j f k but that is not the kind of case that this court has previously describe overwhelming evidence i just want to move from from this denial of guilt which is only one part of the exclusion the got the agents asked ms moore when's the last time your cousin was here the interview is taking place in october of two thousand and sixteen she's unable to give an answer to this relatively simple question she takes she she she says november they say november of last year no november of this year could this be this is october and it goes on and on it's almost like an abbott and costello routine until they're exasperated and they explain the calendar system to her the judge kept this out as irrelevant and if relevant that it was outweighed by some unfair prejudice the government then gets up in summation and what does it say it says well ladies and gentlemen you heard the experts say that she has a low i q but they didn't give you any evidence about her real world function why don't you assess that ladies and gentlemen look at her words look at what she said during the interview well isn't that completely unfair having kept out distant the portion of the interview that shows indeed that she has trouble answering basic questions about her cousin can't keep track of the calendar to then sum up and ask the jury where's the evidence of her functioning well it's there you just kept it out so the jury didn't know highly prejudicial so if you view that exclusion with  the sort of very one sided way that her so called confession comes in there is a reasonable probability that the jury might have had reasonable doubt if it had learned the full picture judge bianco i agree i'm i'm not saying it's a sure things these things are never sure things most defendants who go to trial as the court knows convicted but this was as far as these cases go a close case and the jury in the end  virtually no was not allowed to hear the evidence that she had limited real world function they weren't allowed to hear that she had denied on four separate occasions in this interview that these drugs did not belong to her that she didn't know about them it easily could have influenced the outcome unless the court has any other questions we'd ask you to vacate the judgment of conviction and remand for a new trial cumulative prejudicial and confusing evidence to start that there are three points that the defendant has raised to which we addressed earlier but starting with the rule of completeness taking a step back to be clear the defendant as this court has had made clear in williams which we put in our twenty eight jail letter and well before williams and johnson the defend can't offer her statements of denials to prove in fact to the jury that she did deny knowing the drugs in the bag that of course is hearsay the question of the rule of completeness is simply does the portions that the defendant proffers which is her burden to show this this nature of the proper statement doesn't explain what the court allows from the statement the admission that that she received the suitcase from her pozen who she believed to be a drug dealer i wouldn't it help to make it complete to say but i didn't know she that doesn't explain the statement doesn't explain how she knows her as it is the implication that when she was see the suitcase from one drug dealer cousin she must have known that it c honor because i but i think the statements about her cousin and the prior drug trafficking history that the facts that she was saying to the agents have nothing to do specifically with whether she had said i knew which this person gave me the bag  that there were drugs it's an inference that can be drawn it goes to conscious avoidance but this is not completeness for example of this defendant had said gave a long explanation of the government offer and then at the end of the statement said you know what everything i just said i was joking this entire interview i was kidding that's a very different case that's that's that makes plain some type of admission that the government's pointing to if we keep out as we said to the district court if she had said yes i had the ba but we didn't offer the statement she said well because i was a bellhop that would in fact explain the gun all in one sentence would it come in if she said to the agent i know my  drugs in but she didn't do that on this occasion with that come in that whole sentence come in your honor i get it and understand but those aren't these facts i believe that would be very different and would explain  issue of linking clause is that because she said it well let's find out how many sentences later did she say and i don't know your honor in fact that the statements that the defendant proffered came from a st part of the interview that happened many minutes before the uninterrupted minutes that the government played the statement the government offered that is being challenge was largely an uninterrupted audio tape transcribed and that is part of the record in the government's appendix the exhibits uninterrupted so this was not a failure to link clauses these were simply two separate events and the point is that if the defendant wants to deny knowledge she can't avoid taking the stand in this case and that's proper this court has ruled that the defendant can't backdoor her denial and an avoid cross examination and taking another step back here under the defendant proper numerous other statements she felt were helpful admissible in the court allowed that the court allowed the defendant to comment to the jury that they're in fact was not a confession in this case that was granted in limon a prior to the start a trial so that so the risk of any unfair understanding by the jury was point that the judge's ruling under forty three dollars was proper but taking a step back on this question of the defendant's confusion about november of two thousand and fifteen in november of two thousand and sixteen the defense the defense in this case to be clear was only the only went to mens rea and her argument was i'm not guilty because i was tricked i didn't know that there were drugs in my bag because i'm a gullible person she chose to mount that defense not through offering  particular trait under forty under four and four b to not to call witnesses to come and testify that in fact i'm tricked regularly i'm very gullible and you should consider that she chose to mount an expert defense to call an expert to testify that there are a class of people who are more likely to be gullible than others and that that class includes people who are intellectually disabled i would note that the government did from the beginning we objected to this defense because there is no evidence no proof that this defendant was a member of that class she is not intellectually disabled no expert were found her to be intellectually disabled and therefore all of this testimony about there being a class of people who are more triple than others was irrelevant that was our objection we lost that objection however the defendant was able to offer tremendous amounts of evidence about her i q her low performance on i q tests and generally her intellectual functioning that you don't see in and drug courier trials to experts testified so judge the tally at all in doing for three balancing in fact considered the fact that the defendant had all these other avenues to display her functioning and to talk to the jury about how she function and that this point was prejudicial the government because we could never probe in fact whether she was confused about november of fifteen or sixteen or if she simply like anyone in a high pressure situation made it made a misstatement which she apologized for on tape but your honour's even if there were any errors committed by judge patel yano in his careful way all of that is harmless here this this was not a close case as just beyond could were counted and counted in our brief this was a quote essential conscious of wouldn't case with the proof we offered it was clear the jury was out conservatively for less than three hours and ultimately the defendant was able to mount the defense she wanted to now through all of the other other avenues judge tally on of allowed her to ask you this about the ultimate issue if she had gotten on the stand and said i knew my cousin was a growing dealer i knew my cousin frequently handed suitcases to people to bring him and she handed me a suitcase and because she was a drug dealer i suppose there was a fair probability there were drugs in here but i didn't know for sure i never opened it i never saw her put it in so i didn't know for sure but if you cross me on cross i'd have to admit it was likely in view of her past is not enough for her knowledge on cross examination she conceded that it would be obvious to a reasonable person that i did there were an obvious lie just likely it's likely she did it but i don't know for sure because i never look would that be conscious  avoidance i believe that what i believe we we would argue that and the jury consider it and turning very quickly to a point that counsel made earlier about the government's argument in summation we disagree with the characterization the summation that the government exploited any lack of evidence that that judge tally on those rulings had when you read the summation the government specifically was directing the jury to consider the fact that the experts that the defendant the expert the defendant retained was never given adaptive functioning evidence evidence that the expert stated on direct and cross he would have found helpful and we said to the jury you don't have you don't have to consider this expert who failed to do what he was retained to do just look at her statements look at how she was functioning the room and we were directing them to her statements which were that the chief evidence against her and the reason why this really was a close case at the end of the day and with no other questions your honour's rest of the papers thank you all here the  your questions about snippets of portions of of the interrogation and the rule of completeness st the rule itself says if a party introduces all or part of a writing or recorded statement this was a recorded state an adverse party may require the introduction at that time of any other part or any other writing or recorded statement doesn't have to be the same statement that in fairness ought to be considered at the same time judge newman you asked if if the defendant had said this right in the course of the same couple of sentences would it be error would it would make a difference well if you look at the appendix page one  happens exactly as your honor imagined the agent says ok so your cousin was responsible for sending to reza for rare that's the other woman to the united states answer no teresa came with her dot dot dot but they all are the same link agent the same link defendant yes now this is the part the jury didn't hear agent ok so you had to you had to with giving her you a suitcase and you knowing what she does defendant not knowing that she would have done that agent well you know the line of work she's in you know she's the drug dealer right defendant yes but i know she because when i got it i didn't i don't know how it was set or what but when i got it it was just naturally a normal to my feelings i know what for feel for or not how in the world can the government keep that from the jury same conversation in any part of that passes that you just read come in not in the part that came in is on one page if you can it's  dollars i'm trying to figure out in relation to what you just read yes which is what you wanted yes what was allowed so that i can compare and see whether indeed or whether it's a different part of the interview yes are you able to do that for us i'm going to try to do it for you on the fly your honor i'm sorry we can figure it out later i mean yes it's i should have given it to you with some sort of redlining so you could see what's what's taken out but let me john it's toward the middle of the page they're asking her to spell the last name of the of the of this woman and the agent says to research herrera ok tell me more about that she got arrested here she was with your cousin let me just see if that's where it does anyway you're all right wolf we'll figure it out that the important point the important point of course is that it left the jury with this apparently knowledgeable woman who knows who's essentially saying yes she's a drug dealer she gave me the given other people the bat with with no without the additional denial of drugs now we submitted our own twenty letter last night which you probably haven't had a chance to see but we cite a case in which the government of did the same thing they introduced a defendant's statement he was accused of viewing child pornography on a computer and when he was interrogated he said i was in the library i used the computer to view my e mail that came in he went on to say but i didn't look at child pornography and the other issue though is is whether it's an abuse of discretion i mean it's one thing whether i would have allowed it it's another thing whether it's an abuse of discretion yes yes but it but an of law is always an abuse of discretion and if you look at the judge's ruling which is also in the government's appendix of page government appendix seventeen it's basically an ironclad ruling if the government's not introducing it you're not introducing that's not the proper analysis under the rule of completeness the government kept talking about a careful way of factors to which you would ordinarily grant great deference but these are as we point out in the brief a bunch of legal errors misinterpreting the standard for relevance misinterpreting the standard for unfair prejudice misinterpreting the rule of completeness so there's no deference it's been over i just want to go back to judge newman's question unconscious avoidance conscious avoidance is often given but it is an absolute defense to conscious avoidance no matter how obvious the incriminating facts may have been if the defendant honestly believes that there are not drugs in her bag the jury is instructed they must acquit whether it's foolish reckless negligent they must acquit under that test here with a woman of this i q she did say i honestly believe they're not parent what she said is i don't know if there are she said i did not know there were drugs in the back yes i didn't say i was sure they were not well that's true that's true but it's that's a matter for the jury to weigh in assessing relevance bu