what i've tried to look at what your expert wanted to say and what you wanted to argue did you i don't think you argued that mr shelby didn't understand that he said he was in jail for more than a year my correct he could have said gee when i got arrested in for the possession at that point i had completely forgotten that i had served a year in prison and i had completely forgotten that i was convicted of a of a felony and you could then put an expert to say that's a reasonable testimony by him because his mental capacities were such that he's completely forgotten but all i see here is a proffer that somebody will it's the government's burden to prove the relate element their entire evidence on that element is prior conviction records that date that they are using to claim that mr shelby wished certain things and told certain things  those records that although mr shelby may have superficial conversation it cannot be assumed that just because he says yes i understand that that he actually understands that so i think that that is all valuable information that a jury should have when it was gauging the importance of the government's assets and and ok so so you're you're you're saying that he never served  more than a year and in custody on any of says prior convictions and so that even though he was presumably told during the prior proceedings that resulted in the convictions that  reasonable but valuable for the jury to understand what kind of person mr shelby it she is not even the average person who might go through criminal proceedings he suffers from significant mental  for another so that is why why are we fussing with the distinction between know and understand i mean it seems to me that the evidence you're trying to put on really goes to hillary knows for acting i think that but then he serves an additional time of probation that's why there's a later discharge from her date for probation ok so fletch assume just for purposes of go back and look at this that does he contend that he doesn't understand that he served a year in prison stand that he lack the capability it let's assume it's an undisputed fact that he served a year in prison well you know i'd surely surely you can assume that with me you just told me it was true question is wouldn't all of that evidence be irrelevant if if someone served twenty five years in prison whether he understood the documents or not that the defense would be pretty irrelevant because he would and a day where your evidence of god to his capability of understanding how long the sentence was i think so because i think that even somebody without deficits like that might not remember exactly they remember this word about a year in prison but it it when it becomes a legal issue about whether it was a year or year and a day that's something not something that so many of the data gets out of jail cell remember five years later so i think when you're that you're from the government and we'll give you a chance to respond q classroom performance and adaptive skills is simply too attenuated from the disputed question in this case whether mr shelby who entered knowing and voluntary guilty pleas was informed on the record of the maximum sentence that each conviction could carry and who reported to prison with only eighty two dollars days of custody credit in his back pocket on a two year sentence could somehow lose track of these life altering moments from his personal history i guess i don't i just don't understand the government's position in this case it's it strikes me that the testimony is certainly relevant to the issue that you you the government had to clue you we could certainly debate how powerful the evidence would be before a jury relevance prong of daubert review as in whether this would assist the jury but your honor even if we're talking about for a while i do want to make my case on that and i think taken to its logical conclusion mr shelby's argument but in this case mr shelby has not and cannot dispute the validity of his stake or flees the court found that those were knowing and understanding made explicitly after the court had specifically advised him of the maximum sentence it's hard to overstate how important that is for a defendant who's considering whether to plead guilty before the sentence is been announced and in one of the cases the court in fact sentenced him to two years in prison which means and which he acknowledged in two separate line item says he was admitted in two thousand and fourteen in paroled in two thousand and seventeen it doesn't say what day he left prison and right your honor i certainly do not want to push back against mr shelby's concession today that it was exactly one year in france and but say it was a day under a year and purpose the only reason it would have been is because mr shelby successfully utilized the incentive system known as  tough let me let me make let me make the other side's argument see how you respond to it you would i would have understood that from the amount of time we served in the good credits we got that we got sentenced to more than a year but there's something about mr shelby that would have prevented him from understanding that he was sentenced to more than a year even though he's served three hundred and sixty five days of  why isn't that evidence something that can come in and if it does something is going to come in why what was wrong with the proffer in this case your honor that evidence may be able to come in  that would suggest the kind of memory issues associated with losing track of these life altering events from his personal history with all respect the other side the evidence in the record on memory is things like visual  perception of a pattern in a in a quiz or test environment or it's evidence about school records and your honor this is not a case about mr shelby's ability to comprehend abstract concepts are to find the main point in a reading passage  to secure a passing grade on a quit this is about whether someone who served either a year or just under a year in prison could remember later on that he was convicted of a felony and nothing in the defense proper  occurring a certain punishment let me ask you this this is not the case in front of us but i want to clarify what your reasoning is and let's assume that we're not someone who we know does know as serious memory problems you know he's got a mission he was s of the state court found on the record after informing him of the potential consequences of conviction including the maximum sentence and including later firing restrictions or gave him all this information then pleads guilty and then the court actually sentenced and sentenced simpson two years so that's the backdrop the evidence he wants to submit is generalized investigation of his ability to process information that is testing our classroom setting and respectfully i think those two kinds of evidence are simply too far apart from one another this isn't about his ability to turn around in his mind and illegal it's about whether someone who reports prison knowing that he may spend two years there can somehow lose track of that information and there are two potential ways it could happen as i see it one is that the fact that he's then released potentially early leads him to kind of go back in time to the moment of the conviction and say oh well the judge must not have meant that and nothing suggesting that kind of idiosyncratic thought processes in the defense proffer the alternative is what you're on a reference to a moment ago which is the kind of amnesia defense which is i may have known it then but whatever reason i didn't know it on the day of my conviction and again mr shelby has pointed to nothing in the proffer suggesting that he has the magnitude our type of memory issue that would draw that into question so this court doesn't have to draw a hard line for every future case but we submit that the exclusion of this evidence on relevance grounds falls within the realm of reasonable and was not of use scratch i guess i don't i don't understand your answer to judge fletcher's question suggests that you do recognize how sexpert testimony at least of this ilk could be relevant to that just  so from a legal standpoint it doesn't seem like we're really having that that difficult as the debate everything that you've told us this morning just wrecks me as you're just not persuaded that the evidence was all that powerful didn't matter all it doesn't draw  honor i i guess i would i would put it this way if you look at the cases mr shelby has cited in which there are these relevant issues he talked about from the government put forth the government's charge to defend it with knowingly passing counterfeit bills and to support its mens rea element of knowledge the government pointed only to the fact the bills looked like counterfeit and the defense came in and said actually we have an expert willing to testify  that this defendant has serious problems with his visual perception now whether that evidence was strong or weak on the record that case it was directly linked to the it links the act and the m than that we have here here we have basically recall of personal history of something like reporting to dale to jail a day one knowing that you could be there for two years and the pro evidence is this individual performed quite poorly in school and and frankly we don't think that those are related and nuff to get over the bar of relevance or at least that determination was within the there's one in the record that but that may be series we have an e mail from defense counsel putting her spin and on it but it's hard to identify exactly what the proper would have been and frankly the defendant hasn't helped us much on that score so we kind had to sift through the paperwork but it's our position that nothing in their proper is relevant to either of the potential ways that mr shelby that have lost track of something as much as momentous is reporting to prison to serve a two year well i asked the i don't remember anything that happened in the past and perhaps some proffer would be not particularly relevant i'm not very smart and so i'm trying to figure out where this falls on that scale and in order to do so i guess i've got to figure out what the pro these undisclosed deficits and problems with adaptive skillz and cherry picks a couple of lines from the school records and it's pretty vague it's very wide lens and generalized and none of nothing in  explain the mismatch between the day of the conviction and they have the possession but we don't have anything like that here what we have is this individual is is low are below average worrying in his ability to process information in general are in these certain situations in the classroom or in the testing context and that we think again on this record is too attenuated from the question in  dispute and just to go back to the fact that he was sentenced to two years and served would serve a year in prison if i go to the beach and i read a sign warning me about the dangers of a riptide i might not be able to process depending on my kind of ability to actually what that natural phenomenon might look like but if i go in the water and i immediately experience that natural force acting on me it's an entirely different perspective and here the warning is more concrete it comes from a judge who one breath later is about the sentence here and again you actually perience to be a vet so what was abstract becomes quite real and again nothing in this the defense proper indicates that mr shel y would have on reporting to prison to serve out what could have been up to a two year sentence could somehow forget about that in the intervening period there's no evidence in this case to suggest there's no witness suggesting that mr shelby had doubts about his conviction history we simply have a one page letter from the psychologist we have an e mail from defense counsel and we have a stack of school records and an i q test and we simply don't think that that kind of generalized best station of cognition is relevant to the dispute that already and i'd like you to respond to the government's argument that there is a disconnect between the proffer and at least one portion of the argument you've made which is that these memory problems that would i guess prevent mr shelby from remembering that he had actually received a two year sentence that's just something not a part of any thing that was put before the best record in terms of what this expert would say if you can respond to that one zero i think that i don't think that his income by