divided as to the trial counsel i was not ok but you know a trial counsel had an opportunity to cross examine this witness as to his credibility and as to his testimony and other trials is that correct that is correct and the jury heard all of that and decided that he was still credible the jury heard all of that but there is a point when your honor it which i believe testimony can be so diametrically different from one proceeding to the next that the new trial motion which you know is granted i can see that testimony changes at the nd trial to well we all had to step out of the van and talk about it and discuss whether we were going to go forward with what was essentially a very different plan escalating the plan from one unusual that in the particular circumstances of this case which included the jury reporting itself deadlocked on two occasions the new trial motion should have been granted in addition to that the witness where he gave a statement years ago in which he said he told officers i was young i was out of the country from july sixty on his counsel tried to get a passport which  have reflected that was unable to get a witness from the consulate to authenticate that and didn't want to put his client on the stand i think the government will argue that they had doubts as to the authenticity of the passport stamp and they they were all paid even though they shot and killed the wrong person have a question that really is primarily for the government but i'm going to ask you about the record did the government ever prove that mr mercedes knew that the people he allegedly hired were going to use a firearm that someone twenty four count response that these this crew committed robberies with gods generally that was their line of business shall we say yes but that alone and i think when we and that we argue that point three of our brief was where they were standing no no evidence there was evidence that they had done that previously that that had been an m o the same weapon no it's not sufficient your honor because being on this occasion he said i'm going to kill him with a knife poison pill or something and this occasion mr mercedes had there was no discussion of  how the murder was to take place out of the look he had the best that was at the shooting but mr mercedes was not present there understand but he's aiding and abetting a killing with a with a gun and the question is is he responsible for a killing with a gun that's the question is he getting abetting a killing with a gun we need to know whether he's alive or or isn't of evidence for the jury to think since he's hiring people on a previous occasion look like going to win you have to address i have to prove that this is in fact how they look but he in his meeting with them it's not how they look in his meeting with them he's in a van with them and there's a discussion previous robbery with if he knew they were robbers generally he'd know they were armed robbers he i'm sure he knew they were armed robbers but i do the question is did he know in this we we don't convict people generally we have to have specific proof in this instance that he morning ma'am please the court my name is rebecca donna leskie i'm an assistant united states attorney in the southern district of new york i represent the united states on appeal and i also represented the united states in the proceedings below could you show me where you put into the printed evidence there's to mercedes knowledge that a gun would be used at this killing yes your honor so st i'd like to remind the court as the court is of course aware that as an initial matter the court is required to view all of the evidence in conjunction so i'm going to point to six pieces of evidence from which a jury could have reasonably infer that mr mercedes had advance knowledge under was the bill that exactly your honor but in considering these the court is required to consider them in conjunction not each in isolation but in conjunction and taking every inference in the government's favor and in support of the jury's verdict so in light of that standard i'd like to go through those pieces of evidence now so st mercedes and one second point i'd like to make  your honor's point there's no requirement that mr mercedes be explicitly told i am going to use a gun to commit this murder the jury was reasonably able to make inferences based on the evidence that he knew so rose says he has to exactly exactly or he has to know in order to be charged with the noid twenty four crime you agree with that we agree with that your honor but roseman doesn't say mercedes needs to be verbal e told that a gun will be used just has to know it exactly so those pieces of evidence are as follows st risk was the architect of this plan he wasn't the lookout he wasn't a bit player he was the man that hired a hit team to perpetrate th he and the other members of the hit team had perpetrated thirty five to forty armed robberies all using the same ammo mercedes selected this team and they actually perpetrated the murder in this exact way the jury could reasonably infer from the fact that mercedes organized the murder selected the hit team and the murder happened the way they hit teams was the mercedes intended the murder to happen that way the nd piece of evidence as it went outside his hit outside his own organization to select the hit team mercedes didn't tell his worker go out and find me a murder for hire crew were sadie's selected these men by hand because he was aware of their reputation as armed robbers with this very specific rd mercedes and guerrero or drug dealers they knew each other beforehand and it was reasonable for the jury to infer from mercedes his prior relationship prior drug relationship with guerrero that he was aware of the hit team's reputation as armed robbers with the specific ammo i don't think that needs to rosemont as that little  piece is that there is no evidence that anyone in this pearcey used anything other than guns they hit team at the time of the murder had so many guns that they had to send fifteen to twenty guns back to the dominican republic mercedes a stash houses when they were searched and when they were robbed by resort oh there is no evidence of anything other than guns were found in her sadie's a stash house mercedes and members have weapons exactly there are no knives found there are no bombs found there were only guns found in mercedes his own stash houses and similarly veliz gomez testified that he and the hit team used guns they didn't bomb people they didn't stab people they didn't give people poison pills they used guns it was reasonable for the jury to infer from this piece of evidence that when were sadie's hired men to kill rezai oh that he knew that guns would be used although originally you are them only to take back his stuff and for that you would not need your honor at zero i'd like to make one factual clarification to that point so what fellows coma's testified is that mercedes told guerrero because the two men had previously known each other that someone had steal an acute gram of heroin from him and that he wanted that person grabbed to get his stuff back right fellas gomez testified that grabbed me and and our meant an armed robbery you don't just pick someone up off the street testified you need a gun to intimidate them to go with you so that was what testified the original understanding of the job was and again this was the perfect team to accomplish that that was what they did they used guns and impersonate cops to commit armed robberies of drug dealers so that was their understanding going to that initial meeting of what mercedes wanted but then bell's gomez testified that mercedes change the plan he said that he wanted  again from the testimony regarding this crew specific m o and mercedes the fact that sadie's went out and specifically picked these men to commit this murder the jury could have inferred that recedes knew how the murder would take place he knew that they would commit the murder in the exact same way that they committed all of the other armed robberies of drug dealers the summation was framed the issue of whether the defendant whether they whether the jury could infer that the defendant the hitman would use guns your honor mercedes defense at trial was that he had nothing to do with this so the government's argument necessarily discussed many of the points that we're the architect of this plan that he went out and specifically selected these men that he knew would do the rot murder and i really want to know in motion at the end of the government's case i believe there was your honor that in making that motion  the defendant say the reason there is in the fashion cases because there's insufficient evidence to support the inference that a gun i don't recall that argument no issue wasn't really it wasn't raised to the judge and i was raised  is some of mercedes actions after the murder and of course these are appropriate for instance in a forty four dollars b analysis in it if evidence that happens after the crime sheds any light on the defendant's intender knowledge before the crime it's entirely reasonable for the jury to make those ambulances it couldn't tell us what he knew at the time of the crime anything that happened afterwards your honor respectfully the jury could have inferred the defendant's knowledge based on events that happened after the crime and let me speak about that specifically the problem i'm having and maybe you can can can address it is that this approach by the government this particular case just seems to me to a vis or a what the supreme court know it's not simply that they strongly suggest it's that viewed in conjunction and that they do prove beyond a reasonable doubt and they do support the jury's inference is that mercedes knew beyond a reasonable doubt that a gun would be used and in making th sufficiency determination the court is entitled to say one plus one plus one plus one equals ten because that's exactly what the jury could have found from all of the evidence in the record  six points but we still don't have any evidence that the defendant knew that a firearm and that but you know that's an interesting rhetorical argument to say we have those six points but we have no evidence her argument is those six points are the evidence that support an inference they support an inference but do not have it's going to be an inference that we don't have an x ray and it was ed so it's always an inference but the inference has to be proven beyond a reasonable doubt that's quite true but i mean to say it took to put those six points aside is is a bit of a lier and when that's the evidence they really now whether it's a fashion is a fair question although it didn't seem to be a fair question to defense counsel during the trial he didn't even bother to raise what he filed a motion for judgment of acquittal which was sufficient to preserve the issue and frankly he's more concerned about homicide interaction bort the reason i want my motion granted is because there is insufficient evidence to support an inference of the use of far no but there's no requirement if you do so well with a requirement if you're going to say to a judge judge this case is insufficient don't you think you want to point out the insufficiency i think the motion that was made was sufficient  just to say it's insufficient and said now the evidence is insufficient to establish the the elements of these crimes beyond a reasonable doubt i thought the theory of making that motion at the end of the government's case is so if the court is inclined to see a gap the government can at least move to reopen and fill the gap that is not there's no suggestion that there's any further but it's other what they give you judge they weren't asked to produce it because the point wasn't r don't think that that's the reason for the rule we're spectrally judge a rule twenty nine and most rule twenty nine speed at the close of the government's case your honor in my experience in many years on both sides of these cases is are not argued extensively well that's right at the reason for that is because the government at the end when it rests has zero has clearly sufficient evidence that's the reason the problem doesn't come up but in the rare case where that and it says wait a minute there is one little piece missing then i would have thought it's race i think he was more focused on the murder i think so too if i could make one final point i would just direct the court to