he will have then forty six years old and at the time of the commission in a sense he was twenty four years old prior journeying shirley selection and the first day of trial the new disclosed the earning an ex parte hearing that they wish to call an expert first reasons unknown that expert was not disclosed to the government prior to trial before the jury selection was completed because they did not have enough jurors  defense was he made a mistake in letting in wrong people and thinking that that was his partner and the helpful don't we have a very high standard of review one that you have to show a question that is correct your honor the court in this case mate finding not that the crux of the course this is in the court decision was that it wasn't because the late disclosure that he excluding this witness it was because the ability your balance we lost your judgment but to explain how that goes an expert could come in and physiology why do you lose these things and an expert that it came in testified why do you make mistakes under what circumstances are you like to make more mistakes under what's that are you going to be able to make mistakes to identification because of this distraction fact that may become a now an expert could explain how the whole thought process is goes through in making those mistakes and the jurors  jurors the second issue your honor is happened and that is true without mr gates was assistance it wouldn't have happened but that was the wrong test to use by the trial court in using the enhancement so you have two minutes i like reserve the rest for rebuttal that's fine thank you from the government the proper testimony and that was done on two grounds one that proffered testimony was untimely trial had already commenced and in this particular case during the ex parte hearing defense counsel acknowledged that in this case there was a reciprocal discovery the district the letter went out on february of two thousand and two trial was in october and so there clearly was a violation of the recent discovery agreement and the court noted too specifically to the defendant that the  that the notice was not timing and then with respect to the issue of the proffer testimony it's the government's position that in this particular case the defense was seeking to proffer testimony about something that was well within the purview of the jurors experience and in this case the sole basis for the defendant's defense would have been that he was sitting in his armored car that the messenger knocked on the door to his right and then inadvertently let someone else in my mistake what do we have here your honor is just a simple situation where somebody possibly in but in this case not in light of the fact that the defendant has acknowledged that he was involved in the robbery involved it was not an abuse of the discussion discretion in this particular case for the court to not allow this information with respect to the second argument  case that's true but i don't believe that the court in this case used to but for test i think what the defense is trying to do is to squeeze this case into into the mold of harper parts it's also page thirty of the government's brief and that but the court goes on to state that and he became an integral part of the planning process because they relied on the specialized knowledge of the subject matter well i think i think you are saying that you could use that but for test but i think it means making a more expansive finding there morning when the court goes around the state that he had he made extensive valuable contributions to the planning and organizing process i think they said i think you can be read that narrowly but the government believes and having been there that that if the court was aware of all the facts in the case the government had argued all of that spend it was in the government defendant did have to do including as he was involved in the initial organization along with the first two co defendants he advised the co defendants that the truck features all the security features of the truck he truck would be at particular times he held a meeting at his house where they went over all the fine final points of the robbery he changed the date of the robbery he changed the driver schedule so that he would be arriving at the time of the robbery and not be the messenger the government pointed out the trial judge had taken pleas from four co defendants prior to trial mr gay gore maybe the trial judge also made a determination of credibility regarding mr gateway's defense giving it to the jury to jury itself and i believe that in itself is an abuse of discretion there's nothing else there like throwing the word i mean that's what the government said matched and we didn't say that no he did not well you know i am not letting this expert testify because i know the defense going to lie or is lying right here in saying that he did not see that but that's what the government argued and pointing out the fact that if you if you accept the government's argument that name even let more credibility to defense argument