here please the court michael breus on behalf of lord as margarita garcia your honor the parties come to court to meet with an agreement that the district court violated misc r c is fifth and sixth amendment rights during the course of her trial as this court knows the district court on the sixth day of trial resumed after a lunch break the direct examination of the case agent without miss car but certainly in combination with the jury instruction issues three of which the government can see we believe that miss garcia deserves a new trial on the sixth amendment issue we've been down this road factually in roy the defendant was always present mr roy was at counsel table during the trial here we have a completely course that cuts both ways seems to me in a sense leaving at the front all alone without a lawyer or miss looks as if the defendant's lawyer has abandoned them so but i agree it's certainly different i believe it's different and it's a more serious problem your honor because of the powerful message we believe that the judge communicated to the jury about resuming a trial with an empty defense table as pointed out in the briefs at the at the end of the first day of violence the judge instructed the jury that trial could not commence without everyone being present the judge the jury and the parties yet on the sixth day of trial he violated his own order and resume the trial with an empty  defense table so we think we think obviously of roy it was a serious matter and it did communicate that message that his lawyer had abandoned him here we have a more serious problem because communication is that the judge thought the defense so unimportant and so unnecessary that he could start the trial without it without them  dream courtroom in courtroom same judge yes but now we have a different factual matter with a completely empty table and we have all practiced in district court we know the jury sees everything thought that it would be significant that in a royally the offending questions that were in cope with tori and he listed it in the absence of coun repriced prosecutor i ask the same questions again in more detail so there was no question that the counsel for the defendant was in a position to respond to object and maybe more importantly to fashion how he would come to cross examination where as in this case nothing was repriced six pages are just empty i mean isn't that important difference i believe so as the government points out and in its brief there there had been some overlap and testimony throughout the trial but certainly it different cases different from roy and that the prosecutor again did not go over all the questions he had asked while mr garcia and her lawyer were not there when they both returned now what significance so we do attach from the fact that in this case unlike in roy we know what happened in roy we had basically a blank record about the district court going forward did he know or didn't he know about the absence of counsel nothing was flagged nothing was said in this case we know because counsel does come in during the back end of the cross the defendant comes in still later and the issue is flagged in two ways for the judge right so we know the problem we had in roy was we had a blank record about what may have transpired we don't have that here right and i and i would and it seems to me and i want you to help me with that seems to me that's a two edged sword i'm the one hand it makes it more difficult to argue that hom to apply rather than plain arrow on the other hand you might argue that the violation is all the more egregious i mean our i'm going to argue both those things your honor so we think yes the record is more developed in this case based on just the proceedings that took place on the friday and the subsequent sidebar on monday i would tweak your premise a little bit this issue did not need to be flagged for the judge because as a government as stipulated the judge knew full well right that he was starting without them so we thought so let me just be sure i understand that i am i correct that there was a stipulation that at the outset of inquiry in the absence of counsel and the defendant the prosecutor motioned with his hand to an empty defense table i don't have a stipulation or just help me with that i saw that somewhere in the record there  a stipulation contained and the government's briefs that a usa motion to the judge either by and or by i contact at the defense table was was empty the judge then responded please continue but the record doesn't refer the transcript has is silent on that right the transcript of that day is silent if we fast forward to the filing the following trial day when the parties  side bar to discuss the issue you can tell from the exchange that the district judge was not surprised at this issue was being brought to his attention he made a very quick finding of fact that he started the trial without them because they weren't there i think we would have a different case on the record if the judge had indicated surprise and said he wasn't aware of this issue let me ask you a threshold question i will we supposed to review this it seems to me there are three or theoretically only three possible ways we can review it either for structural era but i think we've answered that question in roy for homeless era where the government has the burden of showing that it was harmless beyond a reasonable doubt the problem that i have is that unlike that case the defendant could have objected was asked if he had a position city ha no objection on the record so i don't think he's preserved harmless error in which case the third possibility is playing error review is that not the prism through which we should look at this case so i think the court should not consider these errors under the plain error doctrine based on the case of wood versus georgia that basically said if three conditions are present planar is not appropriate and those three conditions implicated the lawyers own conduct which it did the lawyer herself was late to court the government was aware of the error we know that through the stipulation and the and the record is full so that the district court knew about the error again we essentially have a stipulation that the district court knew that he started the trial without them so we believe underwood versus georgia you don't have to go to play now or you can go right to harmless error so your view is we want to review it for homeless or yes with it with a cob that i think that that this error is either structural or a hybrid error under direct which relieves the court of the was a short absence in a lengthy trial that was like one half of one percent of the totality of the proceedings and we held in roy and broke that whatever that was and maybe it was an error maybe it had an impact maybe it didn't it wasn't structural because it didn't infect the totality of the of the process and i'm hard pressed to see how we could say apply structural error here when we did not apply structural error there doesn't mean you lose i hope it means if i'm right about this that you have a hard time arguing this is structural as opposed to something else i see my time is you take your time so i would push back on the position that roy resolve the structural error issue because as you know after the roy bond came out the supreme court issued the weaver decision and the weaver decision although not you know on point with regard to the facts they're really very carefully goes through all the situations where structural error might exist they said there are cases where if error protects a right other than erroneous conviction if the facts are too hard to measure and if it always leads to a fundamental unfairness i think in the roid case this court only addressed whether the effects are too hard to measure so i think it's a it's an open question if you look at all three of weaver's problem there though is what you would have to say is that the subsequent supreme court opinion so fully guarded roya as to leave nothing left and i don't think you can say that i would respectfully disagree that we have to show that i got it roy i think it a looser dated the issue of what constitutes structural error and i think as we wrote and are applied brief we need all three weavers rationales so we think that's an open issue for this court to consider i think we definitely have a brecht error here which would again relieve us of the harmless error burden or defeat the government's murdered to show that the error wasn't harmless you know brack quite clearly says that there may be a middle ground between trial errors and structural defects when there is a deliberate and egregious error we have a stipulation that there was a deliberate error the judge knew that he resume the direct examination of the case agent without the defense being there i think me with for the purposes of my question i want you to assume with me just assume that this isn't structural and i want you to assume with me that counsel for the defense really abandoned homes to enter because they had two opportunities one is clear isabelle to interpose an objection to the court at a time in the course of the trial when he could have done something that might have made a difference struck the testimony read it back go back and reexamine there are a lot of prophylactic steps the district court could have taken and  yet the question comes up you're not going to state an objection at this point it's odd you read the transcript that comes from mr boehner not from the court as i read the transcript m at this time no so they really had the opportunity so i want you just to assume with me that homeless era isn't appropriate here because they could  objected at a time that would have made a difference arguably help me with the plane era and most particularly help me with the wrong three i'll try to graduate is wrong  structural or hybrid error satisfies prong three and you don't have to do a fact but i'm asking you to do that because for the purposes of my question i'm asking you to was that we reject a structural error application here and you've abandoned homo sarah because you didn't object and clearly could have so help me with plain error the burden is yours help me see how you might have meant it so a lot of those says that we just have to show a reasonable probability of a different outcome either an acquittal or a hung jury and we think we can show that due to the deliberate and egregious nature of the district court's violation and a law no itself talks about how prong three can be satisfied with a presumption of prejudice in a lot of i think the issue was the presence of another matter it requires that the arrow have quote affected substantial rights which almost always requires that the error must have affected the outcome of the proceedings the standard for showing that is the familiar reasonable probability of a different result formulation which means a probability sufficient to undermine confidence in the outcome we basically take the strickland prejudice standard and grommet on to pronk three of brain error tell me as a factual matter why you think you've met that we think we need it for two reasons one th message that the court sent to the jury by resuming the direct examine a a direct examination of the cage on to an empty defense table and for the reasons we talked about earlier the fact expenditures she controlled various bank accounts and what we believe the the pret the prejudice that's instilled in that presentation is that it was ex parte i'd you know i would i would respectfully request the court to consider this as an ex parte communication between the government and the jury and not only of any witness but the case agent the case agent who had been sitting there during trial who was called as a summary witness as we all know summary witnesses are called to the stand to marshal and bring all the evidence home to the jury and the fact that these questions were not repeated once counsel or once misc r c was present in court i think we we as a stablished as both a factual and a legal matter the third prong which is the only prying at issue under the plane or thanks very much you have reserved your should be reversed thanks very much system united states attorney i represent the united states of america happily in this matter with me and counsel table is assistant united states attorney who is able now was the lead counsel at trial your honor the difference in royal here the ones that you pointed out but i would start first with the plane air doctrine as this court point is and your view is we should review this through the prism of plainer correct your honor to do otherwise in this case we are not disputing that mistakes were made but the fact that the trial attorneys representing mrs garcia had so many opportunities to remedy this and they didn't and as you pointed out judge marcus there were remedies available many could have been stricken the testimony they could have instructed the jury they could have had additional questions and i think that it's important when your honor you were talking about that part of the colloquy on the monday following the problematic time when both counsel and mrs garcia were absent the court at that time it wasn't just that the defense attorneys were given the opportunity to object but they didn't but also if you read up part and i'm sure you already have judged more specifically invites that the defense counsel go forward or the pages of the transcript and come back and tell the court if there's anything in there that concerns her about prejudice that the court welcomes the exploration of any concern about prejudice before the government rests and goes to the rule twenty nine arguments the prosecutor states your honor the government rests subject to the matters discussed at sidebar again there were repeated opportunities and instead waiting until basically rolling the dice the verdict comes back in and at that point raising the issues and asking a motion filing a motion for a new trial to me this is completely different from roy in that sense and plainer review should apply the government would also submit that this is a situation where contrary to the argument of counsel the government strongly disagrees regarding the prejudiced finding or the prejudice in this case you're right judge marcus this is different from roy in the sense that there you had what i think judge jordan called a complete do over every question was asked again but here what you have is really the testimony that happened in those that short period and it was only three minutes when both were gone i know because here we have a record well in fairness the defense gone more than three minutes correct your honor that's true and has a right to be present in this trial to confront his accusers to turn to his lawyer and say hey that ain't so maybe you want to interpose an objection or something judge marcus you're right and i in no way meant the defendant was gone between five and ten minutes or something like that if i have it right you have it completely right and that's the period of time and looking at it a critical difference here is even though the testimony wasn't repeated the testimony at that point all was basically publishing tenant trees a composite i mean exhibit let me ask you about that and that's sort of what troubles me for the first time during the absence of counsel and the defended the prosecutor elicits from the final witness the summary witness who was there to tire of the case together ten individual particular obviously personal expenditures two of them involve checks paid to in eldorado furniture store obviously having nothing to do with the medical business  involves a payment to sally loane drone for ninety five hundred bucks who is garcia's nice one is a payment to macy's we don't know what for but certainly was had nothing to do with the the business one paid off the mortgage for a month one involved a fifty six thousand dollars payment to williamson cadillac for the purchase of a hummer and there were a number of checks it payable to cash or to her husband when i looked at the record and i looked at the examination that preceded this that is to say in the presence of counsel and the defendant none of that had been elicited the by check and by particularity rather what you had was a statement of here's exhibit six i prepared it it's got hundreds of entries in it showing personal expenditures but the point isn't punch until prosecutor asks the summary witness ok let's take a look at these in particular tell me about exhibit one so a check made payable to eldorado furniture how much eight hundred thirty two bucks when six eighteen seven what was that about and it went through all ten in that way it seemed to me to crystallize the nature of the personal expenditures that formed of the core of the charge that those tax returns were falls if the defendant and the lawyer aren't there  then the defendant gets up to cross examine he's not even aware of what came out in the course of that six page into lewd in a sense he's shooting blanks in the night or she is  surely she should have objected and maybe there's a serious claim of ineffectiveness here but that wasn't raised by counsel for the defense but wasn't this a big deal wasn't this testimony really significant and is it an answer just to say well it was imbedded within hundreds of pages of documents but it wasn't flagged it wasn't highlighted and it wasn't punched hole until the summary witness says  probability sufficient on the modern confidence what am i missing the following things your honor first of all as far as the two thousand and seven entries that you referred to in terms of the macy's payment the two outer rado furniture payments and there was also one that you didn't mention but victory racing enterprises are you what's that  tell from the run i don't know your honor it appears to be some sort of racing and that actually goes to my point those are debit card they're not checked their debit card transactions it was made very clear at the time when everybody was there that the debit cards couldn't be traced to anyone when mr caruso talks about the fact that these were this was information controlled or money controlled by the defendant and that term was used but prior to the engines those are debit cards are not attributed to anyone ok on the so you have those then and those are for two thousand and seven because i think it's also important when you're talking about prejudice your honor to know that this is two thousand and seven for seven of the transactions the last three are two thousand and six and the other thing is that if i could backtrack for a moment because i think this is very important when you talk about the fact that it's the core part before that chart when before they were absent or valor who was a summary witness mr crusoe accidentally misspoke she wasn't the case agent she was a summary witness and her main role in addition to summarizing the evidence was to say how are the taxes owing and we would have i think a different problem if we were talking about tax returns for two thousand and one to two thousand and five because a generic ballot testified that she could determine the amount of income and taxes  using personal expenditures but that's not what happened in two thousand and six in two thousand and seven she testified that those tax liabilities and the amount of income came from insurance payments and patient payments only that the distribution of disposition of assets had nothing to do with it i look at it kind of like belt and suspenders your honor the way the agent  determined he was in that this isn't for example of the united states that these ten items all went to the returns for zero six and i was seventy wasn't it the theory of the united states that the tax returns that was submitted for the years over six and seven were false in fraudulent because they grossly understated income and among the things that they should have included and did not were some of these some of these payments wasn't that the theory that's true your honor but i think you also have to put it in context first of all for example the mortgage payment that was a recurring offense  expense and it was discussed extensively in terms of the two thousand and five because it came up before right there i think it was but the two thousand and five wasn't a charged offense with respect to a false but your honor i think it matters in this sense when you're talking about i think it's significant to know how prepared these lawyers were and this was the summary witness these charts the testimony of the summary witness in the presence of the lawyer and the defendant before the lunch break where the prosecutors sought to elicit from the summary witness any of these ten payments no not specifically your honor what happened was it was admitted was a more general and abstract statement of look at all these expenditures they were all embodied in these summaries like exhibit six that would be a fair statement wouldn't yes your honor again i think it's really important to remember that this came in as a secondary way to show income it was not the way the the primary way it was not the way the income was determined for two thousand and six and two thousand and seven for those two years you're talking about insurance and payments and the numbers are close drudge for two thousand and six insurance payments show almost two million dollars coming in and you've got a tax return for two thousand and six for garcia and her husband and garcia was the primary wage earner or physician earning money  bill in two thousand and six in two thousand and seven they reported less than twenty thousand me answer your question about this why do you suppose the government calls the summary witness at the end this is the twenty third and last witness before the government rests and more particularly why do you suppose they finish with these ten expenditures that's it that's the end of the case presumably you want to put on the most done it that way if i were trying the case for the government i would i would want to highlight the personal nature of these expenditures in a way that was sort of concrete immediate she got a hummer she paid fifty six grand for a debit expenses for macy's eldorado furniture or her mortgage etc doesn't make it like really visited in concrete in a way that some of the documents in general don't maybe i'm missing this it's in perhaps a different perspective that your honor is not at all here read it and i think part of that is having gone through this entire record global was the sole source of income the garcia family credibly tight knit family all the money was used for everyone together as far as the hummer there was testimony from i r s officer reed who saw the harm to him or is there in two thousand and seven garcia was directly linked to  money pass through a corporation and bought a home or thirty six grand well that's income unless you cannot otherwise to stablish that it was a business to doctrine which is a very difficult proposition to sustain doesn't that make it sort of concrete in the media and tie it into the charge ya know i don't think so in the other reason is that the defense attorney cross examined agent about that hammer and  the reply to the new trial motion which was carefully phrased she noted that those questions were all planned out before agent who were about to ever testified and i think that's a critical point that can't really be over emphasized is how prepared counsel and garcia were when you look at it three of the defense exhibits a d x a b b and c c all were duplicate of those charts that went in and again defense counsel had the opportunity to find out and see exactly what was asked and your honor on this record it's clear in the government's view that she didn't order it because she didn't need it they were checking off checked by checked as far as that they knew they went line by line they knew those the original exhibits and charts by the case agent agent mcneil and then the refinements which basically just lowered the numbers in a more careful refined way but the ones that went in they were duplicate they knew and they knew before that lunch break because the prosecutor said so we would not have to engage in this extensive analysis if we had read chronic differently and roi if we had determined that the absence of counsel during obviously roy's precedent but beyond that you do not have in this absence and because you're talking about chronic i'm going to go back to the three minutes which is four minutes less than you had in roy you don't have the through the trial of shifting of the framework of the trial itself i'm in no way just well i mean i mean let me put it this was a ten day trial correct your honor and counsel was absent for maybe five minutes at the most three minutes where the council was absent for the entire night day of a ten day trial right when you're talking about we would examine the evidence days one through eight and day ten and if that was sufficient to convert is garcia we would apply a harmless error review you're right we're on or i will say this in this case it's plain air and i disagree with mr caruso the supreme court has reserved that court whatever what if we applied plain error review and there was no objection judge are going to be here for the ninth day of trial you'll have to proceed in my absence when i think it's a completely different thing if you are talking about counsel being gone for a stage or as i read the plurality opinion roy a substantial portion that's not this case well where do we drop where we draw the line your honor you do it in roy at least to a degree here so that's what that's why i think it's a structural way or another trial or but that's beside the point now but my next question is i mean this is the same judge who's conducting trials in the absence of what kind of message are we sending what kind of message are we sending the district court in this case and in rule way when we permit a trial judge to conduct a trial in the united states district court without counsel present and we're affirming those decisions what kind of message are we sending the district courts when they do that your honor as i think was clear with roy i would  this isn't going to happen again oh if we we affirmed him and roy if we are far in this in this case we're telling him it's all right to conduct trials without the death and without the defendant's two things on that regard the united states agrees that there were serious errors here and and we do not minimize it at all when mr caruso said that we agree it was a deliberate error by the district court let me say this i think that judge moore puts a premium or in the past has put a premium on his court schedule that was incorrect and unwarranted you know there's i think that there are other ways to take care of her absolutely i will also say this and if i may i'm not completely within the record but having been district for almost thirty three years i don't look at this as a judge deliberately depriving the defendant of her rights i think you have a judge who mistakenly had his priority on his schedule if you look at his order denying the new trial motion is findings were such that in his view i think he thought the system should work in the sense that counsel wasn't there if counsel had a problem counsel would object and joe wilson i'd also say even looking at the split opinions and roy and in particular with judge show flats concurrence saying hate the system works you also have to have the defense attorney doing their part and again i'm not condoning it but i think that saying that judge moore or any other district court judge is after the roy decision and i mean after royo i mean garcia i think it's important to remember was stayed pending troy roy this all happened before roy that you would not have this happen again i think that the judge misunderstood the balancing and so as far as the message no your honor i think that you do send the message in fact i think if you you would not and send it here then you've got the opposite problem you know again but you would have to concede that if we comma way with sufficient doubt about the jury verdict in this case if our confidence is undermined we've got to reverse is not right yes if you look at the record and applying the plan standard and for cumulative error the code i'm not even talking about the other issues i'm simply talking about proceeding with the trial in the absence of counsel in the absence of the defendant for the last witness of the united states at a point by any definition that's really important yes your honor i absolutely agree there is a me ask you different quest lightly different question the charges here there's a conspiracy count on count one and there are three substantive false filing counts one for years ninety seven one for zero six and one for over seven the ten questions if ending questions in the absence of counsel all went to the years over six and zero seven right yes they bear on ninety seven in any way you know thank you for bringing that up your honor they didn't at the other hand though the ninety seven return was one of the divots one of the objects of the conspiracy charge so it's not as if count two was unrelated to count one but i think it makes a difference in this sense and follow what i'm what i'm  yes i do this is why i still think the nine hundred ninety seven is completely separate i think it's important to look at it in terms of what those disposition of assets were they were strictly in terms of of global and in the evidence going in that there was money made by global and money that by a global so the difference with the one nine hundred ninety seven is when you look at the exhibits put in which are the the u s b c the u s bankruptcy court ones the numbers the tax liability all came from the documents filed by mrs garcia and her husband in tax court or excuse me in bankruptcy court and what you have there so you have their filings made under oath i think particularly important if you look at its government exhibit twelve us b c it's the transcript of the creditors meeting in bankruptcy court and what you have is all sorts of questions being asked to mrs garcia or to just generally to the garcias and this is garcia answers so you have when you look at the testimony of the bankruptcy attorney you look at the filings that they put with the end com and taking a conservative approach are about low didn't even use the full amount of money in their filings that they said under oath was  about the substantive false statement or false filing under seventy two zero six one as the other substantive and it is in the conspiracy i still think under this record that it's clean  give me your thoughts on this question mr crusoe argues that even if we can't use structural area here because that issue was resolved in b with a period of time that was even longer than the period of absent here although in both instances they were very small piece less than one half of one percent of the entire trial the that we ought to fashion on the footnote found in brecht to create a hybrid exception do you want to comment about that yes i strongly disagree with that first of all this court obviously has never extended few courts have ever taken that footnote and extended it the case that the mrs garcia cited from the fifth circuit is so distinguishable i mean that's the case that after hurricane katrina you had the police officers who were on trial and you had the court found numerous high level members of the u s attorney's office logging on line  and i think the key point about that your honor is again you had it being pervasive throughout the entire trial and more importantly that you couldn't you couldn't quantify the harm and here the fact that you have a district court judge made a serious mistake by going forward without counsel and her attorneys present but i don't think in looking at the brecht error your honor you can divorce the fact of the attorneys having the opportunity to cure it and i think that it would be especially unwarranted to take the unprecedented step of applying brecht error in this case where the district court made a mistake but he also when it came up at the sidebar well error vala was still on the stand and he allowed not only and recross on her they could have recalled her they could have an instruction to apply here i think is unwarranted and should not occur thank you your honor if i could just also i would like thank my colleagues have some questions as well and one correction and i'm sorry i think it's because of that the defendant had voluntarily absent herself from the trial that he couldn't draw that conclusion without giving them a hearing your honor i'm not backtracking i just want to you're just talking about the other i believe that there had been a stipulation regarding the admissibility of that exhibit am i correct went in without objection correct your honor all right well had there been a stipulation when did when did that stipulation occurred it  before the agent was giving this testimony you tell me that your honor let me correct what i just said on the stipulation it went in without objection three of the schedules had been previously admitted as defense exhibits they were identical to the ones that went in when special agent mcneil was in and so stipulation in the sense that there was a formal stipulation no but they went in without objection all right thank you during the the time of the absence of the defendant counsel did the agent say anything other than what was already contained in the exhibit which was admitted with engine and it's instead of saying that those debit swer from account three one one three he said they were from a cow three zero nine eight it's an immaterial difference because what mattered was that they were of the one of the five accounts not given to velocity that was discussed throughout the trial it was there but it's a difference but not a material one the second one your honor was regarding the hummer and on that one if you look at the exhibit it shows the fifty six plus thousand it shows in the memo that it was for hummer but the additional fact that was testified to this not in the chart was that was the full purchase price of the hummer again in the government's view that's not a material difference because it's the amount of money it's for hummer whether it was the full price or not immaterial third once more difficult on the third one if you look at it's a check and it's in for the two thousand and six account from there's the chart shows that there was a check and it shows it made payable to angel garcia signed by angel garcia endorsed by angel garcia forty five thousand but what age at trial was that even though it said angel garcia based on her review of the signatures it had actually been signed and indorsed by the defendant mrs garcia the reason the government has argued that still is not a difference that results in prejudice to the defendant are the following first of all the testimony at garcia in the amount of forty five grand no there's no this is the only time the government summary witness offers a personal lay open your about the signature and offers  opinion that notwithstanding it's saying angel garcia in his opinion this was really signed by the defendant lourdes garcia right yes your honor i can't find anyplace else in the transcript where that consider that as something that's not in the chart because if you look at the the very top part of that that's the first chart in exhibit six miscellaneous  it says at the top personal expenditures and you also had agent or about low you know so that to me is not a gap it's in the documents it was in evidence i understand your honour's point that it hadn't been specifically referenced in that but the fact that it says was the documents say this is personal income to the to the defendant for this particular year it says that it's a personal expenditures again and agent error valid when everybody was there testified that this was a secondary way to show income again the way the primary way and the way that the tax liability was determined was not based on the disposition of proceeds and personal income it was based on insurance payments and it was based on the fact that  of payments and for two thousand and six again you're talking about almost two million dollars so i don't mean to minimize the four you're just saying it's a small piece and there's one other thing i'd like to note is  garcia admitted that she would sometimes sign her husband signature the defense was that she was a typical latin wife and i say that because that was  at trial that her husband told her what to sign and she would sign things without looking at them without reading she admitted signing his signature if you look at agent testimony she says it appears to be you know the defendant signature we note and if you look at the government's brief referring to if you compare that check and the handwriting checks that mrs garcia admitted her to be her handwriting there's no way to distinguish it if the defense had been there and objected it was properly opinion testimony and i know they did not object one time to an agent error of aloe and an agent mcneil did the lay opinion testimony the only time you know i'm sorry you go i just wanted to say to make sure that to be candid and clear with the court on the second day of trial there was an objection l a daughter who signed into it into a lease for the medical practice with ms guerrero and there were two angel garcia signatures and there was a question asked of her is don't they look difference there was an objection that was overruled so to me that's different in the sense that when you compare it with the undisputed or the lay opinion testimony that was never objected to but i wanted to bring it to the court's attention anonymously thank you very much  portion where misc r c m her counsel were not present was the driving home of the factors we discussed in my initial argument that there were many checks made for personal expenditures she used those accounts she controlled those accounts and she signed checks in her husband's name as any trial lawyer knows you want to and on a high note and i think that's what happened here they had a summary witness bring the oven at home to yet what's interesting about the point is if you look at the closing argument he barely makes reference to it right because because of the summary witness you are you often don't have to drive those points home during closing because that's the purpose of the summary witness to put that bow on the evidence for the jury and in the limited time allotted to take counsel for closing you don't necessarily have to go through those line by line i may ask you this question the the testimony then went forward on these six pages and the defendant's absence and much of the lord's absence all related to taxable years or six and zero seven and tax returns zero six and zero seven which were of course part of the object of the conspiracy in count one but they had no bearing at all the second count which was as to six and seven and maybe even as to the conspiracy because that was part of the object of the conspiracy how would it bear on the count too well that the particular evidence that came in during their absence i agree does not bear on that particular count but i don't think the or can segregate or cabin the avid the evidence that came in during that time count by count i agree i also agree that the evidence and pact of the conspiracy count especially when you look at all of the the jury instructions with the conspiracy but the reason why that you sort of can't have been the analysis in this way is for a reason judge wilson pointed out during missions in the shelter his argument that the it sends the wrong message that a judge violates a person's fifth and sixth amendment rights and then the court looks to exactly the evidence that came in during the absence to decide what counts can stand and what counts can fall because that  sends the wrong messages the message that we should be sending to the district court and i and i disagree with miss shots that this was a mistake and balancing the judge applied an ironclad rule trial starts when i am ready regardless of whether the defendant roy of course was decided after this case right roy was roy it was deceived the roy panel was decided after this case my understanding is that the be any argument that a district court judge sworn to uphold the constitution doesn't realize he shouldn't start trial without the accused and lawyer being there i mean the  analysis that this court would engage in to determine whether that was reversible error certainly that came out of the right paddle in the roy but that district court did not make a mistake and balance let me ask you just this final question at least for me one of the arguments you made earlier was that we ought to be applying harmless error if not structural are you concede structural letter was essentially decided in in  ruling or proceeds in a certain way if the party wishes the court to take some action or to interpose an objection certainly the rule of criminal procedure is clear and the supreme court of the united  in the classic plain or a case no procedural principle is more familiar to this court than that a constitutional right or right of any sort may be forfeited in a criminal case just like the civil case by the failure to make a timely assertion of the right before a tribunal having jurisdiction to determine it and they explain and we've said repeatedly that the reason for it is just a very practical one and the reason is you can roll the dice and wait till you get a verdict you don't like when you could have objected and if you had timely objected the district court might have been able to correct the problem or the error in this case there are a lot of things the district court could have done if the defendant asked for it to be done he could have read it back he could have stricken that he could have done a do over with the witness both from direct cross but in the absence of raising any objection when they could have raised an objection how do we look at this from homeless era as opposed to plain error that's really my question so i think what verses georgia covers that situation your honor where that fence councils conduct may have been implicated in the issue and here we have an officer of the corps who was herself late to court and she might have been right it wasn't the lateness the court that was the offending problem once the lawyer comes to court she could have blown the whistle either when she walked in and there was cross or when the prosecutor honorably and candidly said judge we've got an issue here maybe you want to read it back she obviously her her failure to a walking on time in no way prevented her from flagging the issue for the judge when she came in on friday or when the prosecutor raised the issue on monday morning so i don't understand how her failure to show up on time stopped her from objecting when she had every opportunity both on friday afternoon and on monday morning and was asked point blank  you object and she says no not at this time i'm i'm missing something here i wouldn't say you're missing anything chuch mark as i would like to amplify please so i don't think it's  i think it's fair to say her lateness did not prevent or stop her from raising an object what i'm saying is that her lateness caused the the the issue of her absence and she might be reticent to raise that issue with the judge because it implicated her own conduct so it's a radisson sas not a prevention or a stoppage which is one of the the wood versus ga factors and i think the other two factors apply as well that the government knew of the issue and the judge knew of the issue with regard to what happened outside bar the  trial day and i think we have to look at that exchange in context the issue was was noted for the judge the judge expressed no surprise that this was an issue he knew that this is what happened the prosecutor and honorable prosecutor i will agree with that asked for read back of the testimony the judge said no so at that point my reading of the transcript that miss garcia's defense counsel and by the way this is side bar and iscar see is not present which is also a violation of rule forty three that the defense lawyer act we asked in the ruling that the transcript was not going to be read but read back and i think as defense counsel if the judge has already said those pages are not going to be right at the bottom with the argument like that the problem with the argument at least for me that evidence presented that could have been incriminating to the defendant and make no mistake there was that's me not borrow it we want to make sure that they have an opportunity to consider it and state their position before the government case the court and they are welcome to do that i mean i took it as she voluntarily absent it herself from the proceedings that's one way to look at it just out of an abundance of caution judge moore says if she thinks there's any kind of prejudice she can order the transcript if she thinks there is some issue there she's welcome to explore it miss pugliese ok judge doesn't end even their b you're not going to state an objection at this point talking to huguely she says no not at this time no i mean that's the call according i'm not here to argue that defense counsel act appropriately your honor you know and i have little doubt that if we were to affirm the conviction here and certain was denied it wouldn't take a new york second before twenty to fifty five petition was filed claiming ineffectiveness all i'm saying your honor is that given the context and chief judge moore's ruling that he wasn't even going to read it back in defense counsel's mind made it few tile task for a mistrial a striking of the witness or a do over yes he offered to her that she could order the transcript but that's hardly a remedy for the powerful and negative message that the judge sent to twice are which enhances the we haven't in the defense counsel didn't have the opportunity to see the reaction of the jury to the evidence the first time around which my doctor into the way that he cross examines the witness you know that that's exactly right judge wilson you know the summary witness was on defense counsel knew that inculpatory evidence was coming  she knew she missed a portion why if it's either putting a bow on it or belt and suspenders a defense lawyer would never want the jury to hear that hear that twice i would like to finish up  with that we do believe that there is brecht error here and the court should find that it would not be unprecedented the case we cited in our brief bio and yes it is different factually but it stands for the proposition that between a structural de fact and a trial error there are errors that happen in between and the standard that the supreme court set out and brecht footnote nine is deliberate and egregious and we think we have both the boeing case actually cites a hard harben case from the seventh circuit which holds the same thing and importantly it doesn't involve prosecutorial misconduct it it involves the district court judge giving the government the use of a peremptory challenge in the middle of trial so we think there are a number of ways you can reverse this garcias conviction either plain error harmless  united states for its candor in its briefing and for mr brown having to flag actually flying the issue for the district court we appreciate your efforts will move on to the next case rat