district court refused to allow the defendant call an expert and what is stunning about the district court's ruling is that the government requested on three separate occasions that the district court please allow the defendant to call an expert and if you look at the language that the  assistant for the government used it is very very telling and very commendable the first thing he said to the judge was the defendant is entitled to present his defense and when the district court refused and this is after all of the objections by defense counsel the government implored of the judge and even said again he has the right to develop his defense again this is the government making this argument mr felt that if this witness had testified what's the upshot the jury could have taken that would be what point with the jury walk car if that's the testimony how would testimony at certain speeds it would have been a dent and number how would that have helped you unless there was some serious issue as to whether or not it was his car at all well again the expert would have disproved the only witness in this case who wakes the defendant to this victim the only evidence they have is the co defendants saying he did me good gone he told me to go out and shoot the victim and the expert could have absolutely demolished his version of events could not be accepted because his claim of striking the vehicle in front of him at ten to fifteen miles an hour could never have occurred there would have been major damage to the bumper the expert could have testified to that and like the government said the he is the right to present a defense and that was a critical part of his the facts that  did not know he was going to get out with a pistol and shoot the victim there is no evidence in this record of any crime that the defendant had any knowledge of this crime at all outside  problem here is that the defense had no idea that the government was going to use an f b i agent as an expert witness even though the agent admitted he was not an expert and knew nothing about herbs if he had not testified at all everything you just told us about why the needed would still be in other words you want an expert to demolish a part testimony that out bumper damage in general the east on his experience was that the only purpose that we should be considering whether you were entitled to put an expert forward to rebut that f b i testimony as opposed to the theory that you were pounding before that was necessary in order for you to make your defense well both it applies to both what if it's opposed to both then i think you need to answer to that is question how come you didn't make an effort to put on the expert before the f b i if that had been necessary in order to cast into doubt the f b i agent's testimony yes there because of all the defense attorney that it was his cross examination is the reason it seems to me you must not have sought an expert at the outset is because you thought it was a common terms of judgment as well why didn't you ask for an expert at the beginning it was interesting the jury to make the judgment on  right ok so that ok certainly suggests that the theory of the case was that it was as the district court thought a common sense of judgment as to whether it be speeds there would be a bump or not but the reason  judgment is first of all this whole issue requires expert testimony there are experts in detroit who study bumper damage it's way beyond common knowledge by a jury and what triggered this entire situation is the government was using an f b i agent to testify based on experience as opposed to begin as an expert on the bumper damage of the the purchases of the codefendant who was also saying the defendant also purchased percocet and marijuana there was no reason for that because first of all it was like your honor says judge person this but the issue of buying percocet has absolutely nothing to do with anything before during or after the crime it was just thrown in by the government to prejudice the defendant and the fact see the record mirallas testify that the defendant committed this what you might call in the grand scheme of things little tiny crime of getting the percocet and then this shocks the conscience crime of a carjacking that results in the death of this young man and what you're saying is that if the jury believed morality on the percocet then that would prejudice your client if the believe m on the percocet how does that add up the government's case against you because saying witness who saying he did this huge thing already here because there was no evidence linking the defendant i'm sorry what was this you want to i want to just quickly address you know the issue of the hearsay that was admitted the alleged it mission of by my client which should not have been admitted what defense counsel argued in the district court is true every single defendant in every criminal trial says the same thing and any attorney was given given that you just  questioning designed to elicit testimony about paralysis drug about her husband struck hughes she agreed that she would not pursue that line of questioning in the face of repeated directions by trans counsel in fact she asked morale us what happened when they returned  housing project into tanya and he responded that we bought pills she attempted to correct him and said you bought pills and he said yes i bought pills she then asked what happened next the to comply with her promise not to question it she did she didn't question him he backtracked and didn't respond to the question this court addressed a similar issue in united states the decent moment six ninety nine discretion standard upheld the district court's ruling and noted that the test the difference in the testimony did not go to an element of the crime here similarly there was no testimony that went to the element of the crime it was a discussion about marijuana and percocet use and it was very limited there are only two references to uses of the word we in addition i would point out that the cases cited from the night circuit are twenty to thirty years old and  even assuming argument though that the comment was improper the comment was very brief and any professional effect was very limited it wasn't as if they were talking about methamphetamines or cocaine use crack cocaine or something of that nature these days i think marijuana percocet use is arguable arguably of limited prejudice and again it was only mentioned rice further the government would would submit that the evidence actually was admissible under for a for b as intrinsic evidence because it was inexplicably intertwined with the events that occurred and would assist the jury in understanding those events in addition even if it wasn't intrinsic evidence it was extremes of evidence which was admissible because whether the evidence the first test is whether or not the evidence is relevant to anything other than defendant's conduct territory and in this case it was it was relevant to whether or not he knew the individuals that were hiring for the carjacking the second test is whether or not it's probably value is more elway's its original fact in this case again i would argue that it does because again i would argue there was a limited prejudicial effect if any  again in the united states the habibie first court held that any evidence that might be useful to prove motive opportunity intent preparation or lack of accident or mistake is is moving on to the second issue an expert on witness on bumper damage your honour's the defense pursued a strategy from the very beginning of trying to create doubt by saying that the bunker should have been damaged more than it spanish word or bump you cross examine witnesses about that repeatedly so i think it's only to be expected that the government would attempt to rebut this theory in point out why it was flawed the expert that the government presented was not an expert witness he was a layperson witness he was testifying based on his experience as a law enforcement officer and in addition i would also point out that defense counsel very thoroughly cross examined agent mershon and he pointed out asian marshlands lack of knowledge as national highway administration in manufacture data he pointed out that he had not researched the issue that he was not personally familiar with the traffic patterns at that location at that time of the day and that he had not personally investigated the scene so i think defense counsel very thoroughly didn't excellent job across in them in this witness and the jury was capable of extrapolating from that what in carjackings that he's investigated and he was testifying as to what he normally saw and defense counsel even asked him about how many cases he investigated that is true your honor i agree  often they do follow follow pattern however particularly in puerto rico and he was able to testify as to that what normally happens is that the individuals who come to our jack the car will bump the car lightly in an attempt to get in visual to pull over thinking that there's  accident and then they will use their weapons to force the person to drive to another location where they then shoot them take the car or else force them out of the car and take the car and that's correct and he had seen damage he had investigated several i think he said around ten x carjacking attempts or that were successful perhaps and he had seen the photos so he was simply testifying what his experience was in terms of the the damage to bumpers in addition i would say that it's the issue of whether or not a car will sustain damage to the bumper when it's traveling ten to fifteen miles per hour in the same direction as the target car is probably an issue that's within a common juror's understanding i think most of us have had incidents where at one point our driving career we've you know backed into a guardrail and that we couldn't see or or you know a tree as we were parking or exiting a parking lot or are known somebody that did so i think this is something that the commenter could probably understand and again i the government put on agent you know a question  marshawn about this simply because they had to rebut in some way the theory that was repeatedly emphasized by defense counsel and i was asked for the statements below from the government is the counsel for  court to allow them to put forward an expert no your honor thank you for that question indeed i do not believe that i think a reading of the record in context will show that that is not the case in the face of repeated and belligerent objections by defense counsel he wanted a very vigorous defense to his credit but in the face of those repeated objections i believe what's more accurate is that you know finally the prosecutor was exasperated and she said your honor you know she left in the hands of the judge honor whatever you choose to do whatever you think is proper under the law we would only ask that if you do allow an expert witness that you do not delay court too much because they have the jury already impaneled in the case was in progress and even that defense counsel objected to and so you know she did object initially but the objections were just by chance counsel does the record show how much of a delay would have resulted you know but defense counsel did not attempt at any point before trial to locate an expert or introduce an expert so i don't know how long something like that takes that you have to prepare the witness and likely would have taken some time it would think  i don't know if that would have been sufficient time your honor i can't i honestly do not remember whether it was close to the weekend but i also don't know if you would be able to locate an expert over a weekend and get them to puerto rico and gonzales that she never lost a case does not do not warrant a mistrial first of all the defense counsel seized on that comment and used it in attempting to further his arguments second of all he immediately improperly retorted well there's always a first time which arguably would it would cure any potential harm the third defense counsel raise no contemporaneous objection fourth ultimately defense counsel agreed with the court if the instruction had been given at that point when already forty eight hours had passed it would have made the issue more prominent in the jurors minds and this way getting it with a final jury instructions it minimized any potential damage if indeed there was any rodriguez who submit to return in the white jeep and we it's not true that we have no other eyewitness we have the victim who read the license plate mother number two his mother over the phone she repeated it again and again and again to the girls in the car and they wrote it down the car was registered to him in a hug and so we in fact have two eyewitnesses unfortunately one of them has passed and we can't we can call him to the stand so again your honor say the case was hell that allegations of dubious and unproven reliability regarding drug dealing activities of a witness or inadmissible to attack credibility where they are not probative of credibility or truthfulness and this is united states before it as incandela sanchez is that maybe he had some kind of bias and therefore he was motivated to testify and truthfully however this is if this was indeed the strategy that defense counsel is attempting to pursue it would directly contradicted his earlier expressed  strategy of not introducing any evidence of his client's drug use and he explicitly said during sidebar with the judge that he did not wish to intend to pursue that line of defense so that would have that would have destroyed that that  c decision last year honors on the issue of restitution here the defendant raised no objection to the restitution suggested in the p s r nor did he raise an objection during sentencing where he's not raised an objection below the standard of review is an error i think it's difficult for the court to get to the player standard under in this case because there's no there's no harm to his substantial rights  way so i think it's hard to get to that to that standard the government takes a position that the should be affirmed because we believe in the family's best interest to put this matter to rest however should the court to this and there's one case in the eighth circuit in united states the iron crowd in which a circuit affirmed funeral expenses we are going to continue and also found that a native american indian related funeral expense your honor in this case the victim had dual nationality he was raised in the netherlands and his mother was of puerto rican nationality a united states citizen born in puerto rico in recent perico his father was a  citizenship the victim of the the defendant takes a victim as you find them as inter law and in this case it's only to be expected that there would have been a funeral in both locations in the body would be flown back to the she's actually said was that the defendant is entitled to present is the us by calling an expert and she repeated that two separate times so she wasn't just agreeing with the defense counsel or a giving in to defense counsel's the maidens but she was actually characterizing this issue as a sixth amendment right to present a defense which cuts to the very heart of this trial