transactions and also what was satisfy ourselves thread goes on the confrontation i'd like to start about the recorded calls i went over this i think very thoroughly in the brief however i like to point out that if you look at the exhibits of the recorded calls there is nothing for the call that for the the phone that was called for the twenty seventh of july that's exhibit eight zero three if you look at there are no calls on the twenty seventh of july and that is supposedly the phone number that was called also of if you look at the government's exhibit that places it's their chart that has hernandez at the very top with that same phone number there is no evidence to show that that was hernandez phone at all in fact there was there was during  hearing on a motion to suppress the the wiretaps there were talking about hernandez the phone of hernandez that was wiretapped and they called it the target telephone one but they didn't give a phone number and so when the u s attorney was explaining this the judge interrupted several words that presses was that the phone that prayers called and then and the u s attorney said no and you find them on excerpts of record twelve fifty one so there is now evidence of what who this lover belonged to and it did not belong to her nana's because there's no evidence showing it belonged to her and if you look at the other press phone that was a seized phone if you look at those phone records there there is a phone on the twenty seventh at ten thirty five am but that was from a number that an opposed to an informant or another source meeting criminy incriminating statements about hernandez i you're talking about how agent jones an agency testified to saying we're asking you to call her name and this and tell him that the drugs have been delivered indeed ok there was no evidence supporting that and that evidence presented to the jury that hernandez in fact was a supplier but there was no evidence of that so those calls violated his confrontation clause because pereira's never testified in either trial but they're not at that point they're not really admitted for the truth of the matter because the what paris is and the reason i thought it was not hearsay maybe you can disabuse me of this is because they're not really for the truth of the matter we're looking at the chain of events and then what somebody says in response but they're presenting it to the jury and it's the same as in the gomez case it says where they get up and say are informant ga this information about this supplier and so they're presenting it to the jury and those those two quotes by jones and z where the only questions that the jury in the second trial asked to have those testimonies really read about those calls and so they clearly said by their statements they're saying her now this was a supplier so we're asking you to call him because he was  all that's giving the jury the impression that he was a supplier but there was no evidence that he was a supplier and prayers did not testify at all in either trial and he was not found unavailable  those statements really violated hernandez opportunity to cover front him and ask him questions about because in those found in the c s press phone hernandez name was not in the contact list at all the agents determined they looked at the contacts there was no one and its name so they made the determination oh we know it goes by the name of boobs be so we going going to call the number under b but below go english starting b he goes by nickname of bobby that's a b also and if you look at the back of the phone records from its present c s phone look at the number of phone that telephone calls between gomez number ends in one four four zero and there are a number of calls there and the last call was ten thirty five am on the twenty seventh of july in the p s r it stated that they picked up press picked up the car from the mats and dock at ten o'clock so here villa gomez is calling them and probably asking them did you get the car we don't know because there is no testimony we have no idea what the testimony is so therefore this evidence was presented against hernandez with not an opportunity to ask any questions of the people that were accusing him of giving this information so there is nothing in the call's the expert or not the expert the custodian for the the phone records for the sprint next he testified that there were no interactions between these two phone numbers of one making the call and one supposedly receiving the call whether it was the direct number or those they called in the church numbers the one with all the numbers questions that's why they're relying on these three recorded calls for the majority of their evidence that this is the evidence that shows mr hernandez is guilty he was a supplier he gave the drugs he's the one that supplied the drugs the problem is there's no evidence of that there's no evidence to show that mr hernandez had the drugs there's no evidence to show that these phone calls were even made and that's the problem i had is that there's no evidence of these calls there were these calls really made if you make that argument to the jury did  i i believe i'm i can't recall that but i do believe the argument was made that these calls were not in the records there was no evidence of these calls it was brought up several times particularly in cross examination well there is evidence of the phone records as the evidence showing no calls there's a testimony by the custodian of record saying there are no calls on that date and these these call records were subpoenaed back for the first trial in two thousand and ten so they haven't and that was the same question the first jury asked the same questions that's why it was a hung jury because there was no evidence they asked worse evidence or hernandez's on this phone and the court said well if you can't find the evidence then there is no evidence on there because there is no evidence showing that that's hernandez phone number that's the and so if you cannot support these calls there was testimony about these calls but no one could cross examine press because he wasn't there to answer any questions however in the hearing where he was asked to come to to see if he would testify and he said he would not testify he through his attorney said well if i didn't get up and testify and be be saying exactly what i said before when i pled guilty i would say it was not his voice on the phone and it wasn't hernandez that was involved in this of course he didn't get up and testify so that can't be used as evidence but he would have said that but there's nothing there and if we go on to the confrontation clause with the law gomez the only person that heard and fact of the even show during testimony that the wiretap applications were actually he lied on those in the records where he did not submit the correct information about what he found in in the wiretaps as far as evidence to to extend these wiretaps but in this threat if we look at the testimony by the u s attorney california philip gomez did not show up they got him on the telephone and he said his car broke down well why didn't somebody go get him there were plenty of people there to go get him ok but during when he got back for the december sixth hearing which is a motion to exclude the cooperation agreement with the district attorneys i was and he did not want to testify but this was the only time he said he wasn't going to testify and then he said he said i send an agent to goes service subpoena on him and he was served and then bill is gone is indicated to the age and that night not before anybody else but milligan before zulkey that he had been threatened by the defendant sr so if this was such an important event gomez mention it on the telephone oh i'm not going to testify because i'm afraid i was threatened he didn't want to reserve remaining time yes thank you good morning may it please the court more can see on this is the united states attorney for the united states i would like to proceed in the order of the issues presented and the briefs of permissible the first issue this issue centers upon what's known as the forfeiture by wrongdoing exception to the hearsay rule that's codified at federal rule of evidence for b six hearsay becomes admissible in that case when hording to giles versus california that the clarence is unavailable that the district court made that specific finding s c r nineteen in the supplemental excerpts of records that there is a statement that's being offered against a party opponent in this case the defendant third that the defendant caused her equi asked in the witness becoming unavailable and finally that it's the defendant act with the intent to prevent that person's testimony davis washington found that after the crawford case was decided this is not violate crawford and remains an equitable exception here the district court after two days of hearings made a thorough deliberate finding finding and reaching reasonable logical inferences based on the evidence presented to her that evidence included testimony from who testified about his conversations with mr of hugo him as the fear and concerns that mr v gomez conveyed to him he testified about his conversations in his observations of mr of hugo mrs wife when he interviewed her reeling all of the various aspects of the threat and then finally the the bouncer at the bar employee at the bar where the altercation happened who indicated that there was an altercation a number of patien kicked out then in the parking lots of the the bar mr view gomez was threatened some individuals were armed the defendant sister referred to him as a snitch at that point now and the court was why because i want to live i have a family you know i married and i have four children and that's that excerpts of record seven twenty nine the district court found those statements to be particularly genuine the court also place a great weight on the fact that mr view gomez refused to testify even if granted immunity because that question came up and and the question of whether the government was going to grant him immunity it became a non issue because mr v finding that the defendant repeatedly nodded his head when mr of hugo measures refusing to answer the questions to the district court as if indicating that view gomez was giving the correct response meaning he wasn't going to testify the rust russell versus united states which i cited has one of my favorite quotes from any case the trial judge can see in the conduct in demeanor of one who testifies or even the conduct and  demeanor in the courtroom of defendants who have never taken the witness stand as happened here a thousand in one manner is impossible for reviewing court to glean from a printed page the principle that a defendant's courtroom demeanor is evidence is well settle evidence supports a reasonable inference that hernandez aided in the march two thousand and six shipment going to there was that evidence first came to light from m when he was interviewed after he was arrested the the agents were able to corroborate that evidence by tracking the down the actual storage facility in h they went to that storage facility were able to search it inside the storage facility was basically the identical car as the one that had been the drugs had been seized from which initiated this in on  july twenty sixth and the drive shaft was missing which is exactly the same place where the drugs had been concealed in the later case now the appellant camps kept saying there's no evidence there's no evidence there's no evidence in this case exhibit eight hundred was the recorded phone calls those calls were played to the jury and there were two witnesses who identified her now and this is the voice as being the recipient of the calls and in those calls there was a conversation about ok wait until you get the three hundred thousand four before you leave the car i want to know what's going on keep me up to date etc etc the people who identify there were two witnesses who identified mr hernandez as voice one in particular was particularly compelling because it was a police officer from the coachella valley in california who had previously arrested mr hernandez and he was called mr i remembered this voice because mr hernandez had threatened him and basically told him he was a part of the mexican mafia and that was what resonated with the officer and which is why he remembered the phone calls are obviously important and it was why was that region well yeah it was there was basically this was a classic battle of the experts the defense had one saying it was him the government put forth a different one saying it was not a reliable conclusion and expressed a number of different flaws in that conclusion the jury obviously rejected that and so they kind of washed each other out and we were left with the actual voice on the calls and as to that that there was all of that evidence that matter and so there was no error and i think the scorching follow that and be consistent on that point in her argument this morning your adversary made the point that there was no evidence that the number that was phone call we have the recording and the recording was admitted into evidence and played for the jury and you would be you wouldn't matter what it was it was established it was his number it was his voice yeah i mean the whose phone it is with phone belongs to subscribe through it is irrelevant we see all the time drug dealers subscribe and false names it's who was on the phone at that time while run the point of of the no evidence argument by the defen e of course there's the go forward you have the standard for whether there was sufficient evidence the evidence must be viewed in the light most of the for favorable to the government and in that light the question is could it any rational trier of fact convicted and that's of course under jackson versus virginia there were multiple aspects of evidence that all came together in this case of course first of all there was the drug seizure significant drug seizure with a corresponding twin vehicle that was tracked down from several years earlier there was the prez phone calls as we've talked about there were the identifications by the two independent witnesses of mr hernandez voice that were mr vehicle mrs statements that came in under the forfeiture by wrongdoing and there were also the prior threats that the court referenced that mr of you go miss and his family had me that was part of the court's decision in the forfeiture by wrongdoing so taking all those all that evidence together again in the light most favorable to the government to the government it is clear that any rational trier of fact could have convicted under all those circumstances and with all that evidence and facts before it finally i would like to just the last issue that was briefed and that identified or specified what was not disclosed never not once it's just a simple blanket statement that was discovered violations and it was material and it was prejudicial with nothing to back it up so it was very difficult in this case to try and respond other than doing what i did and show the entire history of the case and there were numerous instances where discovery motions were made by one attorney of all the trainees that participated in this case in the two trials representing mr hernandez it was only one attorney that ever raised discovery violations and that was the trial attorney for the second trial but violation or had failed to disclose anything in this matter so until the defense and the pelican show that i think that issue is a moot point and i would say and by concluding that appellant themselves even conceded at piece eighty of their opening brief that there is nothing in the record that shows that or substantiate that so for those reasons you know support has questions we would ask that you thank you i don't have a lot of time to answer oh his but he brought up on the discovery it's outlined in the brief front page seventy four go on for several pages exactly what some of the discovery violations were in there in the docket they're fully explained in there but that's not the major thing is on this confrontation clause against villa gomez giles stated that you had to show that in other words that hernandez had the intent to keep villa gomez away from testifying there was no evidence that showed that intent at all there were no phone calls the government subpoenaed and asked for the federal for the federal detention center to get all the any communication out of the federal detention center from mr hernandez and there was nothing and when he said in his arguments before the ruling on the forfeiture he said we have not presented and we have no evidence of communications of the f t c where the defendant was housed well how mr hernandez was in hawaii his whole family of sisters and everyone else was in california how is he supposed to communicate with anyone and get the information out that villa gomez is going to be a is going to testify against him ok if we go through where the incident happened it kneels bar there was a confrontation dish and there's no real evidence that it was villa gomez that the witness ray has was even talking about because he said  i remembered him because of the hawaii id but only villa gomez's california driver's license id and his wife's id were presented there wasn't a photo spread for him to say oh yeah that was him the same with the sisters there was no time when when did this event happened there are varying the u s attorney gave varying dates it was either in mid october or it was in mid to end of november there's no date ok so what evidence was corroborate was giving about villa gomez's alleged threat if he had this confrontation in the bar and the sister just did it was there and they allege that she made a phone call and then they were they were supposedly if it was him was escorted out the guard that actually saw the confrontation in the bar but didn't wasn't asked to testify or asked any questions he was the one that actually escorted him from outside the front door to the parking lot if there had been all these men there with guns he would have seen that but he said no he gave the signal he's our property that was the rules for the bar you had to tell him he was our property so there was no cooperation zokol vaguely looked at at the video in fact he his testimony was completely because he gave different versions each time he testified but there was one us up as you've exceeded your time oh i'm sorry your honor there was no cooperation of anything that zuck a said the villa gomez said about the threat there was nothing to cooperate and you can't and there was nothing showing that hernandez intended to prevent him there was nothing there there was no evidence against her now anderson anything when you asked about aiding abetting that was with somebody else hernandez was was never even mentioned in that charge never mentioned no evidence was presented there was no evidence presented a except the legal mess say the drugs were dropped off at his house nothing else was said no one else testified thank you your honor counsel for the argument this morning the case of united states versus hernandez is submitted