commonwealth can as well so just to start this isn't coming off your time but we received word yesterday that the that mr bray has been removed from the country we will not talk about that today well what we would ask though is that counsel in this case will meet and confer so the commonwealth has a better idea of what happened here and then we will send along  assistance in famine to object to the introduction of grand jury testimony from two and also in failing to strike the testimony of agent jordan who relied on that hearsay information from willard and hoffman who did not testify at trial the admission have that information violated both the confrontation because it was also not in this couple under any separate rule of pennsylvania rules of evidence so we look to the reasonable reasonable ness of why counsel wouldn't have objected in this scenario and being that the court counsel perhaps show that this was a tactical decision on counsel's part objecting i think shows that he realized it was indeed miscible changing his mind later and then determining that these since we're on available i'm assessing that based on what you know what could the possible reason be i have the government suggesting that he preferred the dry reading of the grand jury testimony because you don't have a live witness and it comes across differently for the jury well good i didn't think the girl in the earlier in the trial didn't the government grant immunity is someone who did testify are and perhaps counsel saw that and said hey dry read way better that's an important point but that was nathan schmidt that was at the beginning of the trial and i would say if the attorney general's office was going to also grant immunity to mr hoffman and well or they could have done that at that time they didn't at any time they didn't part of the along when it became apparent there may be a problem with them testifying they also didn't grant immunity when they were called to the stand is there a big difference between is there anything in the record that suggests that they would have accepted the immunity offer i don't have anything in the record that i recall that that says that but my point of this is that it's different when someone testifies and the jury now knows they've been granted immunity and they're getting some deal or some type of something in exchange for the fact that they're offering testimony i just try reading in the grand jury testimony without you know explaining to the jury they may be getting something in return and i think that prejudicial to mr abreu so it comes across to the jury in a different way if they were they could have been cross examined they would have it explain the benefit they were receiving from the immunity it was your argument that there was nothing on the record in front of the jury to suggest their testimony may have been compromised with a deal or immunity or anything like presented to the jury i'm not the column that you know at this time i know that one point cancelled then was able to bring up other parts of the grand jury testimony and also get that into the record as well as the parts that have been decided upon between the attorney general and defense counsel and perhaps that's what your questioning about i still believe that the importance of  eternity general wanted to bring these guys in and give them immunity and would have done so i'm sorry sorry but i don't know if you have something else you want to finish up on that point but i do want to ask you your  claim here is both about the kaufman willard's own testimony and about agent jordan's recounting of their statements but the way i read it each time the government's counsel was was asking need jordan about these things it was a bell the could you they goad this is not for the truth of the matter asserted but for explaining why you took these certain actions so why would that be problematic are they were huffman willard really with this is there if it was just being used to kind of explain what jordan was doing was that setting aside the time when they read in the grand jury testimony  where in the transcript where in the record is it b jordan going beyond that apart from the time he reads in their statements if the very beginning of time when he starts to testify he explains to the court that through talking with  ma'am if you're not aware of a specific page it's fine to say so maybe you could follow up with the court if you don't have a specific citation but we'd like to examine this for ourselves i do have  you would favor that is something i favor it's something that mr approve the quested in his side or where he is can you tell us where that is because i couldn't find it maybe i didn't actually see it but that was another question i solution here i think it's a possible solution in that mr dennett he can explain his rationale for why he changed his mind and i understand that we're speculating that we feel that maybe he did that because it would have limited the impact it's different if you're reading something into the record versus having you know a live witness but the problem here is the confrontation clause and that the grand jury testimony was never tested we don't know the reliability of it because he was never given the opportunity to cross examine which i think it's obviously very important so i learned that that limits circle back to a question i asked you earlier so you had the grand jury testimony read to the jury was there any suggestion in the reading to the jury that this testimony would have been immunized that this individual had a prior record if any were the was that with the grand jury testimony tested at all the grand jury testimony was not tested by defense counsel or by mr gr that there was a possible immunity deal out there was it was a prejudicial that the jury was never told what any sort of incentive this individual would have had testified i think that's the entire point of it right is that they're just him and his testimony and they're never told anything other than that so there is no opportunity to say what benefit they were getting out of it that becomes problematic so the jury is not just hearing what they have to say but not why they set it so and i apologize if i did not make that clear earlier maybe you could oh you only have a few seconds left so maybe maybe a rebuttal i mean i'd be interested in prejudice generally i mean it seems like there are a lot of witnesses and a lot of evidence you know sure there's some disputed stuff here but two charges guilty not guilty so we have many witnesses that the government but i am but a lot of them connected back to other people in the strikes some of them went back to ricky ricardo some of them went back to mr  so i think when you exclude hofmann and willard's testimony and take those people out as a connection from the group to these other people then maybe this team does not include these other people who are referral you know they may have come back with a jury decision that did not find him guilty all twenty two counts that is important because he ultimately was sentenced to twenty seven to fifty four years so i'm not looking at it is all or nothing but the outcome could have been more beneficial to them if they couldn't establish a direct connection from abreu to these other people who may have just been connected with geraldo or ricardo or accounts will get you on rebuttal thank you  but well you were taking the position we don't even need a hearing to know this well two things st there was never any proffer from the petitioner that he would produce evidence that these witnesses would have been willing to fall in their swords in order to protect the record suggesting they would have accepted the one the petitioner speculates that this event would have would have taken place and would have been a a reason for allowing the grand jury presently on the ground here there are two questions under strict on the st is would be in fact have testified in the  is or gotten immunity and the nd is did counsel reasonably make a judgment that they would have and it was in his client's interest can you point setting aside the statute can you point to anything in the record that says in fact they would have testified or got immunity or that counsel d made a judgment to that effect you mentioned a litigation position taken in the travers i'm not sure how much weight we give that but what else well all i can say your honor is if the is the petitioners burden to prove that it is not the burden of the respondents to disprove it if the record shows that there's a statute under which the witness would have been given immunity and i was sorry my understanding of the hey be a statute is that if the petitioner makes out it you know i think there are some cases cited in our brief among the footnotes i'd be happy to recite them in a memorandum following the argument welcome to so maybe we can narrow the area disagreement you're in you are now taking this position that they didn't meet a burden even to get hearing based on that they would have gotten immunity can we can we clear the ground about what's the role of willard in hoffman's testimony was in the overall scheme the twenty two dollars counts here a cat sentences on counts one through five are consecutive so these matter so we have to figure out which witnesses go with which counts am i right that count on looks like it hangs not hanging on hoffman and and willard so the one thousand nine hundred and ninety two thousand and two count to begin with i'm not sure i agree with the premise of your honor's question that it's broken down by by count the only claim of prejudice in the brig at least that's been raised by  yeah it was a good idea to grant the judge the premise of the question and not to fight the judge's crevasse now count two count two is about one hundred and twenty thousand grams of cocaine from april to june two thousand and two my read is this cow depends on willard's testimony it looks to me like daisy had a cortez's volume was too little it looks like alvarez is quantity was too little schmidt buys more but schmidt is very vague about dates and spreading over several years do you grant that it looks like willard's testimony is the foundation of how conviction i would have to go back and would be counted not aware of the record have you studied the record enough to talk to me about how three apparently not  additional year in prison so that's a reasonable position to take if your defense counsel i'm going to allow the grand jury testimony to be read into the to the jury i'm not going to tell the jury the jury is going to find out that there was immunized testimony or any any quid pro quo and then the government or use it additional year in prison and therefore i think it would be a vanishing we slight remote possibility to say that one or both of these witnesses might have said yeah another year in jail that sounds fine to me i'm not going to testify even though they had already testified in front of the grand jury if they were going to hold on or storage that would have been the time to do it when they testify in front of a group in front of a jury and admit to a whole bunch of criminal conduct should the jury be told to do is immune from unity in exchange for their testimony there was no immunity change the testimony of steps that they were going to be relieved of the consequences of the criminal conduct how we knew it the only pressure we know that the only point of a grant of immunity at the trial would be to remove their th amendment refuse to testify and thereby it enabled the court to order them to get on the stand a test and maybe defense counsel to cross examine them on whether or not they were offered anything exchange for their testimony right there that is not something to change the testimony they're not getting anything out of that they don't gain any advantage by good being given immunity for their testimony all it does is eliminate the possibility of an additional patently were refused to testify so there's no quid pro quo there's nothing that the witnesses game by g immunity in order to get them on the witness stand or against them to do is reiterate what they already told the grand jury and that's one reason why there's no prejudice in addition to the all the other witnesses testified to the same scheme all the other  testify to the fact that all these drug transactions included controlled bodies there's nobody the government relying on more than mr hoffman they wrote his they wrote him throughout the entire closing argument hochman was very heavily involved in the scheme but other counsel cross examine him on this with the fact that he was charged and convicted perhaps in it given a criminal penalty for his own conduct yeah but i don't see how that's a cross examination i don't see how that i right so what about send it back to to have an evidentiary hearing hear from counsel well i think that that should not be done for the simple reason that there was never any proper about what counsel would say i think that's part of the burden on the petitioners part in pleading in saying that my counsel had no reasonable basis what he was doing to say here's here's the statement to counsel here's my proper what counsel testified to if i were going to be hearing all the words was a general request for i just want to mention that that was never raise a separate claim in the hayes petition and that's why it wasn't addressed by the dish report by the way if we get to the merits of that you know by the time the trial ended even though counsel had objected to  applies it's all the same ball of wax as it were because we are almost a dozen witnesses all testifying to this large scale drug operation that according to the defense claim only warhawk and establish that wasn't true that was established by all or testifying about the hearsay statements of hot men and women or it so he did put it and they are that this was in permissible and that he wanted to argue that fact as far as the statement that there's a distorting effect of hindsight i would agree to that which is why my argument is based on what we see of record which is trial counsel objecting all along and then when that possibility comes to fruition bennett's abandon so i see that isn't a reasonable and unless he's brought in to explain why that is reasonable we don't know other than going by what we see if the record i'm saying that it is under reasonable because if they were going to be given immunity we're going off when he couldn't force that and if he forced them to get immunity and the jury would have heard the testimony knowing that they were getting unity that's a whole different thing than just reading a grand jury testimony and it's not examined and the jury doesn't know where they're getting anything in exchange for that or how that affects the overall scheme i do think it's important that although the government did call many other witnesses but they don't all rise to the level of hoffman and willard who seemed to have been closer to a  top of this scheme or as the connection between these other people so if you remove their testimony and you're left with just the remaining individuals the outcome of the case would have been different so again we're asking it rea insistence that your your client didn't bear the burden of offering enough information to get it insured i think my client first of all did the best of what he had when he got to the federal court level he had original raised these issues and the p c r eight process which were completely ignored by his post conviction counsel but when he got to the federal court he does lie out on a signing in the in the record where chowhound sole had objected did and why so i have pointed those aspects out because that's what he addresses the fact that agent jordan was allowed to go on and discuss that here stay sane step in by hofmann and well i would but i can also follow up with to your client's removal from the country and it's fair to the to the commonwealth then to so they can do their research well send out something some sort of briefing schedule on that on that issue shortly but it