specifically on the issue of dress i was actually one of the trial attorneys and befor guilty issues in other issues of mistrust and things like that and he was actually recruited to help with a civil matter and i mean is going to issue in his hometown to help resolve that and then some point  and make no mistake about this your honour's this case is not some hypothetical issue of threat this is a real issue of concern my client had my client was recruited by got but he was also recruited in such a way that he was it free of his life and a lot of his family other testimony clearly shows that they did participate in tracking down the deceased attorney and southlake  store with different types of intimidation my client did did help track these these men dan cement in mexico an experience matter but he was intimidated and fear of his life so more specifically my question and my issue is to focus on and judge means gave us a lot of leeway in the crux emanation very flipping who was our expert in the reason he was our expert is because he had actually infiltrated the cartel in mexico and so he had knowledge of what took place in there he wasn't just someone who had heard about it or know he was in a polish witness know he wasn't articulate some of his testimony is nothing that you ever hear in terms of how i describe specifically judge means under seven of who are limited a specific question which i would suggest the court goes to an issue in the case not the ultimate nation therefore it was a question of fact for the jury to decide and not a question of wall for judge means to a specific concern is how the judge means ruled as to a specific question asked by my co counsel mr westfall and specifically the question was i know it's kind of a tight fit judge or you honour's but does someone in mr le days of his position have a reason why opportunity to withdraw now you could interpret that as being a question of law and not a question of fact but i think actions were justified and therefore he is not guilty does the question only of that definitive has shown by poncy evidence each of the following four elements in the court as it were in the front of specifically by limiting us to not requisite mens rea at the time he did the acts that are undisputed and we would submit to the court that this was a very close case on that issue what was mr speight as knowledge and intent at the time that he did the acts during what the government referred to as the stock because that was such a close issue and because m essential defense was that relying on his cousin who he knew to be a legitimate private investigator and believed to be endeavoring in a legitimate private investigation to find a white collar criminal who had defraud by and other businesses in mexico so that he could be brought to justice when you saw that test a of extraneous murderers there is no way a jury  expected to make it reliable judgement on the relatively narrow issue in mr supposed his case to start with we would disagree strenuously with the  government's characterization that the evidence in this case was overwhelming with regard to mr speight first off mr le desmond testified clearly unequivocally in repeatedly that he did not tell mr in the united states a businessman who spoke english he was someone they knew they needed him because he gave them access to the united states in the form of someone that could literally walk into a clerk's office and speak english to the getting to play p r i he talks about the trip to new york and they stayed in a nice hotel and they're looking for the cheating spouse and they talk about doing all these things in you look at when they're in florida in mr camp on  submit that's indicative of someone who's not thinking i'm here trying to track somebody down for the cartel to do a murder at someone who thinks i'm an assistant to a legitimate private investigator and maybe on how to be a legitimate private investigator  if you look at campanis testimony he never says he was given a deal by the government to testify he never said testifies about any conversation prior to the killing where he view i don't think the jury could i think you have to put this in the context of what the jury heard that show up for jury service and they're told you're not this is going to be anonymous we're not no one's going to know your names including the lawyers so if you're a juror so they're going to think that seems weird you know but that's not how it works on t v i mean when they're not on the money so then you get to opening statement and what you hear in opening statement you hear something that sounds like it came straight out of a movie or a t v show about chop over somebody in broad daylight to hit men from a mexican cartel execute someone in the middle of an upscale shopping in a restaurant district in south  so you're already is a juror so they're in in the case starts in the government immediately they would starts talking about all these other murders  the discussion of the extraneous is it permeates throughout the trial if you look at the trial lasts fifteen days calendar days from the first day of evidence to closing argument nine days of that or testimony seven o days they're talking about these extraneous says the government says it's brief it's only six seventy six pages of testimony they didn't include the three days of cross examination of le desmo where they got into this in de and look at what the jury you couldn't expect them to separate it out they didn't just hear in the abstract oh yeah they're this it's strenuous murders pardon me for interrupting you but are you going to get to the  it did cloud the jury judgment and make it impossible for them to separate out the evidence and make an individualized determination as to whether subpoena really did have the culpable middle state at the time of are some pretty careful instructions about that well and again in the time we have here we have tried to lay that all out in detail in our brief you need to look at it how it actually happened in the trial from day one of the trial through the end and what you see is you see instructions being administered here and there and then you see at one point the judge overrules and doesn't instruct in other stuff comes in you see  repeated references to the strain he says going back and forth we would submit to you that this is like macwrite mcrae they had the instructions in the cry of the lawyers stood up and that was on the defense name was actually warren i mean morons lawyer stood up in objected and got limiting instructions throughout that trial in this court said this is one of those rare cases where the repeated limiting instructions are not sufficient and we some that much like the situation in mcrae maybe it wasn't evident to the trial court to the district court before trial that a severance was going to be needed but as this trial on up went on and the jury was repeatedly shown the train's evidence and again it's not just in the abstract i mean they had one of the strangeness victims brothers come who was a doctor and testify he examined his brother's corpse and how he' been tortured to death and they showed pictures of it never thing else it was not just in the abstract with this guy's done some other stuff i mean they went into gruesome details about it all and cross examination in that regard i'm sorry are much ok you're opening times huge burden you show time for and that the district courts during structures were unable to protect him from this he cannot do for three reasons first the evidence of his guilt was overwhelming second the rule for zero four be evidence against  was the only real contested issue at trial that is whether he acted with intent to kill harass or intimidate the victim with respect to count one or whether he acted with specific intent that the victim be murdered with respect to count two now there was more than enough he was tracking the former cartel lawyer and also e mails indicating that he knew that was desmond was working for a cartel not for a bank subpoena also repeatedly used false names during the course of the conspiracy and his intent can also be inferred from his continued stalking of the victim after they find him also his intent can be inferred from the fact that he wanted lid as much room move the sticker of the on the detail identifier on the tracker that was placed on the victim's car just hours before the victim was killed because he was concerned that it could connect him to it and his intentional destruction of evidence after the victim was murdered most could perhaps most compelling of all was that after the murder subpoenaed did not act like a person who had been the evidence supporting his count one and count two and he admits that there is no real contested issue with respect to his tampering conviction evidence alone which would support the strong inferential evidence of his culpable mental state after all why destroy evidence if you if it only shows that you have no idea that you were hired to help kill somebody now given the strength of the evidence showing his guilt to peter fails to show that the rule for zero four be evidence against le does not spilled over to him and denied him a fair trial moreover the rule for o for b evidence was limited and easily separated from cepeda it made up only a small portion of the government's case in chief by my estimation six percent of the transcript of the government's case in chief and by its nature as what which is exactly what happened here and this is true even when the evidence against a codefendant involves serious or violent contact in harrison this court rejected a severance argument based on co defendants prior crimes is evidence was overwhelming testimony about intrinsic acts committed during the course of the spirit conspiracy moreover it didn't have ample cautionary instructions that the district court to hear it involved to general cautionary instructions at the end of the court in the jury charge that didn't hear almost every time it was admitted and every time the defendant asked for an instruction the court always said now remember this evidence is only coming against that asthma you cannot consider against the so the instructions were much more cautionary in this case as well now so it also feels a point to a single instance of compelling prejudice as explained in detail in the government's brief he cites five instances that either misunderstand the record or rely on gigantic leaps of inference that are completely refuted by the record he argues that the prosecution elicited testimony that eight thousand dollars was deposit into his account after tracker was placed on elizondo striver but the record actually shows that the testimony was that the money was deposited in till it does miss account he argues that the court ga impression that he was wrong to object to it as no book but the record shows that the court actually just overrule the objection because the prosecutor greed to move on now turning to the defendant number in his brief he does not argue that he proved dress and i would and he therefore he has waived it but moreover even when he came up here and was arguing dress he noticeably didn't go through any of the moments of dress and that's because he cannot need it but it was not under and him events are impending threat of death or serious bodily injury he voluntarily joined a group over oh he was working for god so for years before he started searching for the victims here and he was not afraid to disobey got his orders when it suited him got to told him don't cross the border after the victim's death and he crossed the border that's how he got arrested and while searching for the victim in florida got to allowed him to take medical leave and come back so that he could have a surgery all of that shows he was not under an imminent or impending threat from gotto would asthma also negligently and rep recklessly placed himself in that situation he voluntarily joined group or ruto and he was friends with chico malou and other leaders of the once there was a police station close to southlake and it was also not reasonable to believe that tracking the victim would have alleviated the harm as good as my had tracked other people forgot to before this victim and that apparently hadn't freed him from the threat and turning to another issue you raise about gary fleming's testimony now he argues that the district court excluded or limited the testimony of his expert but he fails to point to any part in the record that shows where the desert court did so and after searching through all of it the only instance i found was the one he mentioned where the court grant sustained an objection under will seven o four where the question is eliciting closely mirrors the dress almonds requiring the defendant to show that he had no reasonable opportunity to avoid the threatened harm moreover even assuming that he can show that that was playing error in sustaining that objection he failed to show that it affected his substantial rights because not only was the evidence of his go overwhelming but even with respect to this question the court immediately allowed him to follow up with another question that elicit the same substance but pose less of a danger of eliciting a legal conclusion in particular he out he allowed the lawyer his lawyer to ask in a general sense without directing your attention to mr le desmond when a cartel gets ahold of someone one of these expendables that they use lead to persuade to these people have an opportunity to withdraw from cartel work who is able to get the same substance of what he needs to get and it didn't affect his defense now if the court has no further questions defer to main creek and that based on the overwhelming evidence of  i know my issue is narrow but that's what we have great appellate judges i'm not trying to make you feel good about yourself but this is an important issue let me tell you why gary flynn is dead i don't know if he was killed by the cartel but he died in the same car x and that's not the r see the record tick upon his son who testified against his father and his uncle did so to try to lessen his punishment which he received a significant reward from judgment i think twenty five years in federal prison versus life without parole the evidence is clear that capoue that the gang members trying to kill the pano in mexico and a car accident that's not something that my client made up that he was under duress and my client's family was under constant threat of intimidation and harm my close family didn't come to their from because they were afraid to come to the trial so it's still important issue for the jury most respectfully and i would suggest it is a fine line in reading reading the seven o four and that kermit case which is not a criminal matter it's assume matter i want to reiterate the question mr ball asked did not go to the ultimate issue i want to reiterate it went to an important issue in th case that i think judge means most respectfully you admire made a mistake on and should allow that question to go to the jury and let the jury make that decision the jury controls the outcome of the case they control what the true please for i want to address a couple things from the record first miss hayworth is correct that i in the course of writing this twenty thousand were brief i did mess up on the money going into see that what the government says is overwhelming when you put it in terms of what it's supposed to know before the murder and what did he know after much of the evidence that they show that they say shows he had knowledge before the murder is just as can it as conduct that occurred after the murder and is just as consistent his behavior with someone who thought he was doing something legitimate in an all of a sudden found out i'm in the middle of a cartel hit and this is bad for me i need to get out of this i guess what i would say is his post murderer conda is just as consistent with him having innocent knowledge at the time of the murder as it is with him having guilty knowledge the last thing i want to address is the proper remedy as they point out we have not challenge the sufficiency the evidence on any issue we have not argued about count three but the question is could suppose to get a fair trial in this case under these circumstances and we would submit that if he couldn't get a fair trial in town someone into you couldn't get effective trial in town three and we would also point out that in the event the court believes