five years after mr crane was indicted nearly two years after the trial i am now finally making the closing argument to which mr crane i was entitled the problem is although i'm delighted to be here today this is not the appropriate and i believe that's a thorny legal issue that requires a sport to closely examine again the balance will open all the season should i have time in my argument i will revisit that issue but the problem i find most troubling in this case is that the defense was not permitted to argue facts that were central that were simple to the defense of this case and that went to the only disputed element in the case before launching into the trial of this argument i would like to here regardless of this court's decision today mr crane is serving time and will continue to serve time for the alien transportation charges are concerned it is the conviction for hostage taking one of the first sixth amendment constitutional right to present of the fence and for effective confrontation i mention this to trial any of this issue i'd like to hit upon that again because truly the only real disputed element in this for this maybe is to be overturned you are this is a direct appeal so i think that because there was an objection below that we need to show there was an abuse of discretion and because we preserve our constitutional objections it is a burden on the government parking lot outside of a van and between a van and a truck there are only three witnesses to that discussion and that discussion is central to the case one witness was my client who testified he obviously has because he was facing these charges a second witness was highly panetta who was affiliated with the family mr panetta obviously has a bias he is affiliated with the family and was receiving immigration benefits at the time the only witness who did not have an  family but that by itself would make him want to convict somebody else with a second you are he was receiving immigration benefits as was the entire family at the time of the trial he was a government witness and there was no dispute he was a government witness who was w hundred five mr sanchez reports that there was some sort of disagreement about money during that discussion so he must have heard through them of what he heard the discussion because he reported hearing the report of the cocking of the discussion he heard something and that witness was reported before the defense had an opportunity to speak to him well maybe they may have ties in there with your second question as well but there's the children i mean the only evidence on which he was convicted was not simply that conversation exactly on and that's what's particularly troubling about the district court's rulings because the defense suffered allegations of an incredibly inflammatory sexual threat a threat first elicited by  argument is because he might have heard my discussion at the parking lot and he might have heard a discussion within the van that the government exporting him from the united states if courting him from the united states has committed a violation such that this entire indictment should be said that is an argument we have because that is an argument we have posited your honor but if i may i would like to focus on my primary discussion today which is even if the court refuses to dismiss the indictment the district court erred by refusing the defense to comment on those facts to comment on the deportation to comment on the absence of a neutral p else it seems to me now why did you want to argue that the absence of this witness had to do with the guilt or innocence of your client your honor the absence of witnesses or sanchez went directly to don't know we won't be able to tell you what he said what he would have said you are that is exactly the government starving for closing argument and that exactly is a question that very the jury should take into account my complaint is i was not permitted to argue that reasonable inference and it this point they don't although i recognize you say that's because they deported them although that seems to have occurred without any you know they have faith or you know it just happened you know the prosecutor had asked for everybody to rethin direct review to exclude that testimony when normally the trial court has from just scratch there's abuse of discretion or honor when he scooted that witness without a job or a hearing because i think the court credits my abilities  greatly i was able to cross examine that child witnessed i was not able to explain the concept of child suggestibility i was not able to explain the scientifically demonstrated concept of the impact of authority figures substantial ash of time make children particularly vulnerable to false memories i was not able to explain or look at that fact he was a p would have testified that the use of leading questions particularly create a situation where children can create false memories it was day one here in this forum use those type of leading questions to elicit the sexual threat i was not able to present the type of evidence to contest the wisest and the key difference your honor is the difference between credibility and reliability i was well able to attack the credibility of the children and i think i did so on the cross examination but i was not able to provide the scientific context of the reliability of those children and identified some of those points in the cross examination that raises the reliability of these children into question for a liability not credibility dr isom would have contextualize those he would have shown how interview in a trial two and you know in trials everyone's had these various experts that here you know you've got a great job and he misremembered he had two years to play yet leading questions that was the difference between the threat to the mother and the threat to the child i mean you really have everything there to argue all that to the jury did you not i mean it would have been icing on the cake and it might have been nice but i think what we have to evaluate is was it mandatory and i'm not maybe there is a case you can cite me too that i can look at to see but i think it would be great to have this person there's no doubt about that it would have bolstered your argument but that doesn't mean that the judge was new jersey case at one thirty six new jersey to ninety nine which is the most thorough judicial discretion of the importance of the role of suggestibility and it was absolutely essential in this case are not my time is nearly  was described by law enforcement during the interviews with and as not forthcoming they said he clearly didn't want to get involved he wanted to minimize his role and that was something that was in the record and that's something that the district court had before it been able to hear the conversation but there's nothing in the record to suggest that he heard in thing he did describe the general nature of the argument outside the fans who want to force meant but he didn't there guess what they're asking is that they should have been able to say here's a witness he can't be here today of course because he's been deported and here is his statement on the three o two what would have been the impact on the trial and the trio to  to get involved and that that cross examination concerning the statements exactly when it happened what was said before and after words and other or other contextual  the the district judge agreed with the government's arguments about about the about this statement not meeting the requirements under rules state or seven and and this is the this is one on which the district court where if you don't know you don't know and then that's fine i just wondered if you knew i i don't know off my head i don't read it but just to be candid i don't recall an a specific declaration that nope no that only open ended questions were used with carlos gomez let me go back a moment then i think district court's decision on this i don't think it was a factual determination that we necessarily give deference to he said that it lacks factual relevance that seems to me to be a legal question and then he went on to say he thought it would take up too much time and didn't think it was necessary that seems to me to be a legal question that we  testify based on the expert proffer even if it were otherwise it would have been relevant that in other words it's true for a for an expert to talk about the above about things that might  and but but in terms of the government's admissions of what happened that that didn't appear anywhere and that but that was all before the district court well ok so now you have that the of the child said that he had been asked by you or another prosecutor whether it heard anything about facts right well the first he first came up with that he first came first recollected the threats in response open to questions in december of two thousand and one in the two years part of that he really hadn't been interviewed because the key it's been tied up in other procedure  tell police use leading questions but that was two years before and in response to the pleading questions there was there was no recollection of any start sexual threat and they didn't ask him specifically about that that was just not the case and the the as far as the court is quite pointed out this was something that the defense was able to bring able to at least with respect to the boy's credibility that they were able to the expert witness was not the icing on the cake he was the cake and this discussion illustrates why those children were not asked open ended questions about whether or not sex took place this is what they were asked that you are three at six seventy two  through five and this is my examination of carlos gomez and it was only after they asked you that the tall guy with glasses or the short guy say anything to you about sex that you first said yes this is what they said right and the child responds that child reported a sexual threat two years after the event took place the government is incorrect to say he was not really interviewed before then he was interviewed at least five times by and asked agents during that  subjected to leading questions find authority figure questions to suggest of the sexual threat and he responded yes now the government could introduce that evidence that evidence was permitted after a pain hearing and we chilling leading questions that your argument would lead to the conclusion that you would the judge must permit an expert to the contrary your honor my argument i think is strictly limited to the facts of this case i would stand a case where there is a child witness who was interviewed by law enforcement who are not trained forensic examiners when that interview is began one day and then that witness is sent home to speak with his mother who herself received the sexual threat and then pick up on another day when that child is subjected to five years of interviews excuse me five different interviews over two years where sexual threat is first elicited two years after the event when that sexual threat isn't elicited an interview that is not recorded there is no prejudice as to the way because mr crane is concession of alien transportation counts truck this from a two week trial to a one week trial or less it was forty three years two years of litigation proceeding this trial this witness fourth when your eyes of hearing on behalf of marvin backing mr backing has been in prison for over fifteen years now based upon a trial in which the only person who is alleged to have been a witness to the crime did not testify in a post conviction proceeding in state court where he wasn't present and he wasn't represented by counsel the facts which the state has relied upon i