of the two cooperating witnesses the statements of the f b i agent the language that makes the prior consistent statements not hearsay requires that the statement to be going to be introduced at the end or duz prior to the time that the suppose it's motives to falsify arises during the course of the trial and the cross examination of both of those witnesses mr alexander mr o'neil the defense established that they were both approached by the government with offers of cooperation as part of the deal before any of the statements that are an issue were made by either one of and was specifically asked if he wanted to cooperate out of custody in connection with the bank robbery investigation therefore the the matter the motive to fabricate with regard mr alexander rose  of that point in time i mean the motive to talk the lies that motive to fabricate all they're hoping to get from this is a benefit they're going to have their load lightened as a result but that doesn't want to indicate why they should point to your client or why they should something well two things number one the motive to fabricate is the motive to get a benefit so if the courts chorale mean that they get the benefit by talking whether they talk truthfully or talk lying probably doesn't matter although tyler talking with a lie is it's less likely to result in the benefit they hope to get because it's more likely the government will figure out before the end that these guys are lying and see where the fabrication i don't understand the motivation to of the motivation to fabricate i think there's something else and i'm not sure this provides some of the motivation to fabricate the offer of getting a benefit for whatever they're going to say is the underlying motive to fabricate all they would have gotten the benefit of the set it was like and not washington if it really was like and they're going to they're getting their motivation to talk i understand that but i don't think fabricates the same thing as talk do for you if you're willing to talk to us about the bank robbery we're going to let you get out of touch with the etc the further issue with regard to both mr alexander and with regard to mr o'neill or the fact that they did in fact why in both of their own mishal contacts mr alexander's case he lived out right about a number of things so again he clearly was being motivated to not tell the truth because he in fact  roni and i i appreciate that your honor but this is not just some miscellaneous evidence these two individuals are a key part of the government's case she because they are supposedly the insiders and they are supposedly the ones who are in a position to finger mr washington pictures that they did have but they did have pictures and there were some substantial disputes in the evidence as to whether or not individual they claim was mr washington was of fact mr washington and there was evidence a when he was interviewed by the f b i he's either said anybody can see that for me or anybody can see that's not me he said according to the testimony of both of those  what the government was able to do by introducing the testimony by agent tag we are ready about the alleged prior consistent statements was to make agents hagler ready the person who could compare and bank there were two people from the bank who made eyewitness identification one of those people identified mr washington the other person had identified mr washington in a photo spread but in the courtroom identified the if you will as being the person who was in the photo spread and the person to rob the bank she did not identify mr washington the person who identify mr washington had said originally in her interview to the agents at the bank on the day of the bank robbery that there were three people who were involved in the bank robbery and there were some meetings at the bank then there was some discussion among the different people and a few days later she suddenly concluded that there were four people involved in the bank robber so she had some credibility issues with regard to who she actually saw at at the bank and where they were and the other person did not identifying conferred with each other and gotten their story straight to make them parallel inconsistent at a point in time later than the subject of the agents testimony in the answer is yes your honor that what's that was part of but not the only part of their cross examination and that had to do with the fact that mr alexander's statements to the government changed over time and some of that  terms of the time pattern takes place over a long period of time it begins when they first are contacted and then they have a series of interviews and are put together right up through including coming to the courthouse and trial in terms of just just to go back briefly with regard to mr neeld and point out that he lied when he was initially in court about his identity and both mr o'neill and both mr alexander initial contact had the same motivation for their not being truthful and that motivation was to get out of custody which is why they both have acknowledged the circumstances under which they told those lots and that's what the government offered them with the opportunity to either have reduced charges and or get out of custody rule permits with regard to a fire statement by witness testimony that is consistent with the clarence testimony and offered to rebut an express or implied charge against the cleric of recent fabrication or improper influence or motive to the extent that the suggestion being made by the sense was that at least some of this test was fabricated when alexander o'neill conferred couldn't be offered couldn't the agent's testimony be offered to indicate that prior to this opportunity for the two of them to confer they were in fact telling the story separately to the agent that was consistent on pertinent points only if you ignore the last part of the rule of evidence that requires that the statement has to have been given and the one you're honest talking about prior to these time that the supposed motive to falsify a rose is talking about when the motives to falsify arose not when the parties had just subsequent opportunities to get together and falsify their testimony some more necessarily lengthy or what is it you're pointing out when you say the last part of the rule i'm pointing at the language of the rule that talks about that the statement that you that the agent's going to have met asked to have been made prior to the time that the supposed motives to necessarily so even if the motive to testify has arisen a certain fashion before the question of whether or not to separate witnesses and get their story straight may itself be in a pertinent issue a trial it may be but you can't get it in by admitting what is otherwise inadmissible hearsay which is what the government did in this case it's not an issue of whether or not it's relevant it's an issue of whether or not it's admissible because the tears ok and the other issues the  second issue that i wanted to address had to do with the video of one of the sentencing and that sentencing issue had to do with using mr washington's juvenile convictions to increase his criminal history score and i asked the court to consider substance and so really addressing that issue for a couple of reasons one is because in this circuit for the cases that i've cited and also in my letter brief it appears that this circuit is taking the position that the use of a juvenile prior conviction is limited although the circuit has not gone to the extent of taking the position that you can be you cannot be used in connection with the calculation of criminal histories for and the reason why it's important for the court to address that issue is because in this case as an example what so place with regard to mr washington is that  the district court reached the determination that and a juvenile adjudication that took place when he was nine years old for stealing candy should be considered the same as if it had been an adult and the fifteen year old and seventeen year old officers for which they were juvenile adjudications would not even have been a crime if mr washington had been an adult at the time the doe's events took place because both of them had to do with their status as a juvenile what's happening in the state of california for example with regard to these juvenile convictions of mr washington's a classic example someone at nine years old comes into the system there is no right to a jury trial with regard to the allegations and as a practical matter the lawyers handling those cases and a nine year old boy who's sitting there in a courtroom dealing with that is looking at what he's looking at a status offense and asked to do with the entire juvenile welfare system in the state of california to turn around and now take the position because of the sentencing guidelines that were instituted that that is the same thing as if he had been an adult and he had committed that crime for purposes of a sentencing now and takes that entire system in turns it on its head it's hard it's on its head because it's now taken what is not supposed to be that kind of an adversary proceeding and as a practical matter requires that it be that kind of them of an adversarial proceed because now lawyers handling those cases you've got to look at them from a different standpoint you have to look at a nine year old now is if he's going to ultimately be held responsible for a prior adult conviction and that isn't the way the california juvenile system is designed to operate and i submit that under the authority from the ninth circuit and under the subsequent supreme court authorities that have talked about the search the memories right to jury trials that is not the way the guidelines should be a the court it would take anywhere from forty five minutes to an hour and a half depending on traffic there are only two of them in there then you know that sort of line of questioning so working they were actually not they were point and it's not me that it's possible your office has made a judgment on this but i'm not really sure how a new district judge could be expected to pick the matter up and make the judgment that nine twenty four would seem to require in the cross you know i do think that even based on a quote cold record the judge can make that determination the facts i'm very clear many of them with regard to the thing teller testimony were not controverted with regard to being having a fire transcripts or cited in any of the priests that supports that representation what he did do was he decided not to impose it so the judicial fact finding as far as that issue is concerned is actually taking place and at this point in time there's no legal basis for the court to reverse that one of the arguments being advanced by the government the only other available argument is that because of the blakely decision that was a decision that had to be made by the jury and about the strength of the government's case so the courts understands the faeces because we've raised several arguments in our pleas to go beyond just the that one evidence or issue of the government's case was based on the two tellers who came into court and only one of whom could identify the live body sitting in the courtroom number one that's the same tyler who is netted that she actually originally only reported there being three people involved in this bank robbery not the four that she went to salonica on a bank robbery and you know three four i know the judge how do you get from telling the police three on the day of the bank robbery yes two weeks later coming up with big deal it simply indicates that those people's their credibility was suspect now the two insiders who testified their credibility was suspect from day one because of their mission as liars and because of the fact that they made statements that were contradictory and that along the line the nature of their statements which was the purpose of the cross examination this was not a cross examination which was just based on what took place when they were in the same jail facility and when they were driven back and forth to court at the same time that had to do with what they had said over a period of period of time when they were interviewed by the f b i agents that preceded when they came to trial as well as what they did when they were in trial and then you have the inquiry that we've raised with regard to the validity of the statements made by mr washington during his  in connection with those any fair reading of the agents testimony indicates that mr washington said two things depending upon how well the agent heard it through either said anybody can see that for me i have a conflict in the jury in and the answer is yes your honor from my point is that each of those things standing by themselves are subject to having them attacked which is why do you actually actions we've raised in the appeal are so significant because they go to two of those three if you will polars of the government's ca