for middle million pills his conviction for conspiracy distribute methamphetamine in a sentence of three hundred twelve months at the trial court level prior to the trial beginning there will be a motion to suppress evidence residence at the great court residence to obtain drugs however upon further review there was no such communication was really argued to the court that in fact there was a misrepresentation by the agent in the affidavit that misrepresentation that in fact there be no probable cause for the search at the great court residence also a trial the government meant introduce significant evidence of more overt a theory of the sense was that there were multiple conspiracies and that many of the the overt acts were attributed to other conspiracies not the charge conspiracy involving mr lobelia the court found that there was evidence of writs i believe it already been issued for both that both individuals ok at some point and the the judge said could i have a proffer to do the fence and the defense said essentially what you just said we would expect i want to demonstrate that but he wasn't he wasn't identified by name corrected your new trial right right no no and then the judge said disposing of this i want to get to what happened to the judge said let's let's not let the government argue that opportunity to observe him we believe that part of the jury determining credibility what weight to give a particular witness would be to also view the witness in terms of their demeanor in open court and given that he was only one of two potential witnesses that we had we believe that that was very significant what difference does it make here that mr adela's counsel and i've read that part of the record says i would advise him to take the fifth with respect to anything but  admission that he was stopped coming across the border with with drugs because he was never charged with a conspiracy count and when he testified that i was now bringing them for mr lemaire way but rather for somebody else he would subject himself to prosecution when back he was already in that seizure and then also even in the government's trial memorandum they included that overreact in that particular scene but they weren't allowed to argue to the jury they were allowed to are to the jury but they again into our position that testimony about at  given that the government did introduce that overt act as evidence directly against i believe mr loeb melly that that he has a constitutional right to try to rebut that evidence wasn't it i'm still i'm still a little bit confused on this was it introduced as an overt act or was it simply described by the agent to tell the jury what the telephone call meant when somebody talked about losses who were the overt a specific transactions or is this involving drugs on this particular case i'm looking at the transcript agent let's testify and basically on july fifth we actually stopped one of the body carriers at the border bringing in a pound of methamphetamine and so in cooperating witness for the government and he was at times that could make a thing and it was a bit difficult to nail him down so i did bring out enough information for the court to believe that it was a valid theory of the fans that there was some evidence to it however given that we weren't able to produce our witness on it we were unable to really make the case strongly with any witnesses for the defense but you've got a multiple conspiracy instruction i think that i'm ok and did you also get the corollary instruction that a conspirator doesn't need agreed with you she was a relevant witness she had something that could be said but she also told the court she would take the fifth with respect to any questions that went past the very narrow basis of repleat agreement so transactions drug transactions and those were the transactions that the defense wanted to question her about we did not need to go beyond those trying to know when the government of them said and by the way one of those transactions part of your conspiracy with mr maliki and she would have said i think the the court found that you had a privilege as to anything the government will would want to question her about and so that was that's why i'm asking is does not does not weigh into whether to make her testify well your honor i would argue in point in court back to and that court said well in that situation that the government's right to really fairly going in two different additional areas must give way to the defendant's right to compulsory process under i believe the six the limit and so we were arguing here that in fact that same analysis we think should apply because the government would not have been prejudice when you look at at the transcript you look at the one of evidence that the government put in there was no prejudice to the government particularly given that the government was the party that brought up those two particular instances and so the defense was looking for the fair opportunity to rebut what the government already brought in and against it offended so in this situation in the government essentially they  they got it both ways they were able to introduce it against the defendant they wanted to finish wanted to finish the instant the government argue well we would like to now go into other occasional testimony without really making a showing that their case would be prejudiced in any way if they we've taken up a lot of your time with questioning so if you want to and anything else that's fine certainly your honor but essentially we're arguing that we believe that this was really a constitutional violation we're not arguing that this is an issue where there had material information and even though the court did determine that the theory defense was valid the court still deprived missal know of the opportunity to call or as a witness and under these circumstances where they got the defense only had  witnesses and both would have been needed to be called pursuant to a writ by not allowing the defense to call either one of the witnesses the defense was left without any other witnesses to call to make its case and in so doing were arguing that the court record eight oh wait i was reviewing it last night it's in that area because it's during the back and forth between the district court and the defense counsel it was a sidebar exportation right but bothers me about that is i don't see how was a necessary witness and he was relevant to his multiple conspiracy defense in the case so having made that finding that me that meant that he was was in a position where he should have been brought to testify and as i understand it the only reason he wasn't was because of some paperwork snafu according to the judge actually going to the court went in and made amended findings of fact and supplemented the involved with mario it says i will not say who my source of supply it actually says that interview is not something that a verse that it was somebody else it said i'm not going to say who it was  this is a case that and this is one of those cases mr adel was apprehended at the port of entry on july fifth as a body carrier we didn't bring that evidence in other than to highlight to the court or to the jury and attributing those lawsons to the extent that they were ready to take him out the only reason we introduced that particular testimony was just one sentence during the course of a five six seven day trial where the agent said yes we did have apprehension on multiple among multiple apprehension and that was between the period of june twenty second and july fifth during which we got from had numerous individuals and he's no doubt that apprehension was of mr downer we mentioned nothing about you know but you did mention his was also represented by counsel at the time and his testimony as the court i believe also found would have been subject to the same fifth amendment protections as right to go haters in that he was only charged with the ninety two ninety six bring him on that in federal not the conspiracy so he would maintain the same privilege as run so i don't i don't know the answer to this would if he had if somebody asked him on the stand who was the source to yes you're on because i think they would establish conspiracy once you're admitting that that's not just a an amount that you own and you you are now admitting to a fact that might support conspiracy did i read the record where mr rebell own counsel testified the teleconference or actually the proceedings with the court today that reviewed the record last night and i was reminded that even the defense counsel suggested that he didn't know what was going to be said he actually said as much on page eight await have to be clear the information that i have about rebelling comes to me by way of his plea agreement and his requirement in the sentencing who put the u r o r into the record was at the defense the defense rather ok and then did the other question was answered thank you with respect to veronica his testimony i think the record is fairly clear in the court made a good finding that if asked veronica heda would also be able to assert her fifth amendment privilege and ask her testimony if she had been allowed only to testify if those matters which she did not retain a privilege it would have so distorted a fact finding process discretion surely supports the position the court found that the defense had the opportunity to put in this testimony regarding the multiple conspiracy through who you know is testimony this would have been cumulative to that back you are the overwhelming amount of this evidence focused on four seizures completely unrelated to those involving veronica those were mentioned during the phone calls but the evidence from those particular seizures the the drugs that came in were not introduced we focused on the other four seizures if we wanted to put in that evidence we would have sought out immunity for the for the witness and try to get her to testify because that was all part of the same conspiracy  we put the evidence in there we didn't have that opportunity we chose to focus on some some discrete acts because the overwhelming amount of evidence in this case we had to chop it down to fit it into a reasonable timeframe but rebel is transport times that was something to the marshal came in from the i've reviewed the record in what appears to me based on the conversations with the marshal was that there was some glitch that there was no ability or the rich weren't properly transmitted by the court to the marshals or some other issue there that's the only thing i can glean from the record but as to rebell as testimony it was even if he had called her dell it was just mere speculation about something that was really not an issue other than an offhand comment or an offhand response to a question during the course of the six day trial where evidence has been presented about focusing on numerous other seizures and back to one of the issues that court mentioned the sensing wasn't based at all on that particular seizure that was an evidence that was admitted at trial if the court would use the record they'll see that the court did not allow or did not account for that and in fact said no you know i think you proved up a base tenth of thirty six you didn't get in more than four point five kilos and in spite of the sentencing papers to the contrary proving up by preponderance using the affidavit from special agents but and using some of the other line sheets the court said no i'm only going to consider that evidence that drug evident that you introduced the trial in this case that resulted in base offense level thirty six it was less than more than one point five kilos and less than four point five kilos and that was attributed to the seizures at the ports of entry on may thirtieth june those four seaters and then the quantity finding more than fifty grams actual case the overwhelming nature of the evidence made it harmless here this would not have been affected the trial outcome in any substantial degree with their testimony the evidence clearly laid out the