and both times it progressed to the federal district court after the case was dropped by the maricopa county attorney's office the attorney general's office the state of arizona picked up the case for reasons unknown they again decided to not to pursue the charge dismissed the case without prejudice at the time of the argument which occurred in october two thousand and two defense was not aware that mr bowker spinny was cooperating witness because we had not received disclosure regarding the talk that he had in april two thousand and two and we argue to the judge cio board that the timing of the indictment and the nature of the government manipulated their system and how they gained a tactical advantage by turning think very that time they were to solidify the case during that it almost looks like it's only thirty day delay but during that time they had met with him several times i believe they also meant again with him in july the even know about some of the delays attributable and the mr procrustean and the key in the history the procedure of this case off the prize and to the second argument which deals with the evidence you're ruling by the district judge now we're on the third judge at this time and judge strand had limited the defense from mentioning the dismissals of the federal indictments or the federal complaint and that issue is really crucial because it goes to the bias of the goes directly to the bias of the of the witness wanting witness and the district judge would not let the defense argue that issue and that is a total abuse of discretion what how how does the dis standard was indeed charged in the federal system for the very gun and this case was dismissed without prejudice and they are likely the case was going to be refiled i mean everybody knew that it was going to be follow this question when why the motivation for his cooperation in fact at trial he testified well i've turned my life around just trying to do the right thing when if we were able to show the tiny thing that his cooperation in that would it he came off as a guy who turned his life around here that he was on drugs before he was all clean and at the time that he decided to cooperate it wasn't really his idea it was his attorney's idea base that things out and he just came in and went to lie and he was just trying to do the eyebrows considering that this guy's receiving incredible better from the federal government just from the plea agreements but also but maybe he's not as so nice about really turning his life around that there was really more all tarrier motive the witness those things are always relevant and those should be admitted to attack the credibility witness especially a case like this where it was the cooperating witness to the testimony that really did  qualifies as crime of violence for arm for criminal act or act of purposes you take the categorical approach and as articulated taylor versus united states and when you take the categorical approach as to this particular as i understand our case law he's been on the last clearly had misconduct that falls within the generic definition you've got him so i have to read it in my view at least i've got to read what he said now i think that would be in violation what you have to look at what elements did he admit to and those are the elements he admitted to the other facts the conduct compassing that the non non essential elements are extraneous past and now then the court is required to look at going beyond the transfer of nice looking at the underlying facts of the case and that's where the problem occurs because that's what taylor talked about you know what you end up doing as you start look at the facts you start litigating all the issues then what do you do you have a jury issue determination on those facts now which is what's being litigated regarding blakeley enamel line and that may also be applicable to this case i followed the rule twenty each a letter regarding that issue so  the defendant procured i just missed all of the state charges against him by procuring focus seanie to lie for him he perpetrated a fraud upon america by county initially successful so when you talk about a tactical advantage mr stanton liked this situation where his fraud on america county superior court had worked and he wants to freeze that in time but that can not be legal prejudice for a defendant seeks to benefit from a product upon a state court that he committed and there's no question in these exhibits it came out at trial that it's a stand in in communicating incorrect that the government did so in some way as to gain a tactical advantage all parties agree that on april twenty sixth two thousand and two focusing that with the government and told them the truth  was his gun but that santa knew it was in there and had asked to take it as of that time the government had approximately nineteen days to indict by may nineteenth and not below the thirty day deadline n the government did not indict by may nineteenth and did follow the thirty day deadline and in doing so rather than gaining a tactical advantage the government put her its own case by putting itself in the situation where there was going to be an inquiry into whether or not the dismissal should be with or without prejudiced so one every basis upon which defendant asserts that the government was acting strategically and tactically in fact it was not and secondly the fraud upon the court theory is very important as this court looks at whether the dismissal should have been with or without prejudice one of the factors there is the impact of a reprosecute upon on the administration of justice and the exposure of a fraud on a court is a significant factor in favor of permitting this prosecution to go forward in terms in terms of the  yes he had pled guilty to some weapons charges and he was getting a cooperation agreement but there was an entire outstanding arrest for running a lath in the back of his car for which no one had made any deals or that he had a cooperation agreement that he was hit with whether or not he had to say correct things so that the government would not only give in this deal but wouldn't prosecute him on the map case the test the cross examination they have facts have been devastating we don't know what the jury was able to find not just on mr bowker seems testimony but through the handwriting expert who said exhibits four and five the false letters writing out the testimony were written there is no reason for a rematch and for reconsideration of those factors because the appellate court can in fact make that determination and so i've got a bit of a hybrid argument it's very clear the district court did hold a hearing on this matter on october tenth and after this stage not on this record because of what tells us is that where the record is complete and it's clear that looking at the factors you did have a serious offense the facts that led to the dismissal were between the attorney general's office and the county attorney's office and the united states attorney's office i believe it's quite clear from context that what the assistant it's attorney was saying is i have not talked to these other police agencies ok i don't think there's any way to argue that statement as usa had never talked to anybody within his own office that's impractical given the way the cases get passed around who are wondering if it was not good management if there within a time we fashion with respect to the second indictment as being negligent which perhaps charitable i mean at some point negligence flies over into incompetence it should have been done but the fact is fifth the defendant had already now found out that a final focusing had already told the truth within it well within a timely framework for the government to indict so very clearly the government had had no tactical advantage in acting that way so on this record despite the government's fault there is no basis to find that the dismissal should have been with prejudice turning than to whether or this court made it clear that over breath triggers an inquiry and what was the over breath the next in seventy seven arizona statute talked about breaking into automobiles ok and that would not be properly the change of play transcript it was very clear what the defendant had to have done as he committed this crime let me ask you a little just to work a little bit on what constitutes unlawful entry under the generic idea burglary of the common entry lawful yes because it was not unlawful and it was consented to by the owner of the home i'm assuming under these facts i was invited for you were invited so yes now under the arizona probably now this is a made them some fault on the reproduction because there are some words obviously not there but reading between lines is part of that sentence we were not close to our word limit and there's no good reason anyway not to there is to say somebody comes into the house wanted to steal something you said well that automatic lawful entry but i think that's what is part of that's not the generic definition of burglary that's part of what makes this so california statute and the courts struggled with whether for first degree burglary in california did in unlawful have to be implied as a requirement and ultimately the court said yes and yet there's a troubling footnote from the government's point of view footnote seven that seems to say but don't run too far with this i point that out because it was before the district court that becker case was cited in the government's response to the objections to the draft years art and that's that the criminal based on the actual language of the guideline and it's amazing when a witness becomes a cooperated witness for the government how much credibility they carry and it's the government argues that mr bowker that mr spann committed the fraud in the courts maybe it's the other way there was mr examine on that issue regarding the army career criminal enhanced and i mean the crucial issue i guess the court and this is why the question the court is asking is what under arizona because you don't need  argument on both sides i give you a hard time but it's all in the spirit of we're working here together so i don't know don't make them what you feel too bad that was i think an innocent sort of over mistake i think but i