was more prejudicial than probative it's understood that the government nonetheless introduced the testimony as well as some argument government excuse for why this is permissible is that the defense opened the door and they point to two other cases primarily from this court united states versus in rio and six with the story both of which are first of all teach contrary to the government's concern well it's a pretty clear from the way how and from well it's very clear from real maria the door is open but how far what does the defense do to open the door how far did they open it so your argument i think is that what happened was that the government went too far by it if you could and should have just stopped by trying  tank is never going to be that the guy who's driving it across the border that's very that's one very important aspect of it and that comes from this court's decision united states versus limb that says whatever whenever the door is open whatever the government does to rebut it has it's a very narrow exception in the government wide open how did they do that the defense had a fingerprint expert of its own they designated their own fingerprint expert you can't open the door wider than that and that's what the defense did in maria what's the difference is the bottom line is there were no franker prints i mean that's the doesn't matter because what we're talking about is the government providing with evidence that has already been held to be more than forty three and the only reason they can introduce it is because the defense has opened the door and what i'm saying is what maria says what linda says it's the first thing  the court has to do is look how far the defense open the door mario they opened it wide open i'm saying they made their own fingerprint expert here we didn't do that we asked one one or two question doris exactly the same that's my point when i had my hearing you tell me that the door is any different t thought ok point taken but that's the point the defense was getting out but i think what maria says is you have to look at the amount the type of evidence that the defense introduced here we didn't introduce any positive evidence of our own always that we did was asked i think one or two questions on cross examination excuse me sir did you ever fingerprint no that's about what it was for the best very different than what they did in maria and secondarily you look at how what did the government do to go through the door to maria with actually they peeked through the door with the quote there are page eleven seventy seven with this court said that the government did there that the agent that the testimony that came in for the government in real did not exactly the various roles of people in the drug organizations nor did the agents imply that maria participated in a large scale operation  so really you have the door wide open by the defense and the government essentially limiting its evidence as much as it can sort of piecing through as i say and i think that both things are different here we do not have our own fingerprint expert we have one or two questions on cross simply and the government instead burst through the door that rio and then the third element i discussed united states versus limb case and your honor already referred to this which is did the government even need to do it did they do more than they needed to to rebut it and i think that's true and i will repeat the point your honor made but i think that's very clear  the pressure that was given to him that may have caused him to say things that weren't true so i think in conjunction with that and again we look at united states versus limb is that the government do more than was necessary did the government take evidence that we know was more prejudicial than probative under forty three and use a gratuitously when they didn't need to do so i think if the course point is they had a lot of other evidence that actually weighs in this case more for the defense than the government because they didn't need to  you're saying it now and the district judge made it very clear that that's not what he was doing he was giving you the benefit of the doubt by saying i have seen some other  where where there was a negotiation and they agreed on ten percent so i'm just going to give you the benefit of the highest i ever seen and i just you know i guess my real problem here is that you know your brief never starts off by correct and and you know it's just troubling not to be upfront about difficulties and anyway i'm my point here is that the district court did not rely on other plea  exactly what what i did and here's the reason why but but the gist from where joseph was saying was that ten percent was essentially the maximum the problem is that ten percent is the minimum ten percent they're not from this evidence we have a picture of and the court hasn't seen the picture but there's a picture of bricks of marijuana stacked on a scale and they're stacked deep you can only see the front row of bricks and you can see in the picture that they're not identical  and the government never measured them as far as they're visible shape never measured their weight we also know that actually what we're looking at when we look at that picture we're looking at marijuana we're looking at cellophane practising we're looking at greece and we're looking at chemist with the chemist said was to test of course samples and i said that some of the core samples smell of marijuana as she said it smelled like gasoline was her first answer and i asked her will they also smell like marijuana and she said yes they smelled like gasoline and marijuana so when we look at the picture of this of this alleged gross weight we're looking at three things marijuana packaging and gasoline and we know that only one of those three things is what we can consider which is the weight that weight of the marijuana itself as far as to answer your honest question with regard to sixteen or seventeen percent i can't recall exactly in the transcript where that is but the point i was trying to make and if the government had had brought it had brought his own evidence what we would see in that probably the highest  net weight reduction certainly i've ever seen in the district is more like twenty five to thirty percent it depends on the type of packaging it depends on the amount of packaging it depends on whether the bricks are identical or not it depends on all those things  the government this case the defense tried to get a preservation order and ultimately did but it was too late they'd already been destroyed the government didn't mention that at the time that they were destroyed by the time we got the preservation order and they didn't physically measure them as far as were the bricks identical and they didn't take up a weight measurement either there's no evidence of the accuracy of the scale of the god speaking of things that aren't mentioned in brief the government says that this is a department of justice laboratory scale and that substance and that's simply not true that the way it was to the contrary this was a scale kept by any of these questions it was important to bring out can been brought out there were they were i'm sure and i've read the transcript i know what was brought out but as but if there was different packaging from someone saying it could have been brought out  is no indication here that there was heavy contact paper or evening rocks or the defense never got to see it my point is that the people who did and who did the wayne were on the stand available rule for a defense attorney don't ask before the jury question you don't know the answer to because the government destroyed the drugs and also because the net the question of net weight was not before the jury that's another important reason why that was inquired into we ask that via an element in the jury instructions and knowledge packaging it would have been probably a good question the question about gross weight was asked in front of the jury correct correct ok all right and because it wasn't in the jury instructions number one the jury didn't pass on the gross weight and number two him that he would allow the government to elicit the reasons why you think because we're not taking and is the government when the heads and the defense went ahead at that point in decided even knowing that the court was going to allow that inquiry he would continue along that line of questioning the government's questions to be an expert witness were very specific they were narrow responses that relisted were narrow there was no testimony about marijuana being in the motions of the government filed back in august which are part of the record that was not provided to the court the government in those motions gave notice this list of motions were filed on him on august wel plastic with a had a way over eight kilograms so there's a vacuum sealed plastic see if you took all the stuff out of the packaging stack of the plastic and eight kilograms is what seventeen pounds of plastic that's a huge amount of ice thank you so it's inconceivable that in this case the judge did not give a benefit to the dependents in order for them to read the advent of benefit to him he would have had to part almost eight it was seventeen point eight percent to get