i see you were appointed under the criminal justice act we appreciate your willingness to accept the appointment thank you refusal to consent to a warrantless search requires a new trial based upon denying him a right to a fair trial the standards are appropriately set forth by both the government and the defense and the first threshold question is whether the remark was improper i would submit to the court it's clearly evident that it was improper mr shastri never at the time  objection argued that it was proper the district court found it was improper the government and footnote eight on pages twenty to twenty one to their brief cite to the fifth in the seventh in the eleventh circuit assuming the improper the tenth circuit saying they may be and permissible the third in the ninth clearly finding that they are improper but recognizing that this court specifically hasn't addressed that issue in regard to the impropriety the court instructed the jury that it was improper and never should have been brought up the defendant brought a motion for a new trial the appellant brought a motion for a new trial which the government did not respond to did not claim the trial judge was an errant finding that it wasn't proper and i would submit to the court although it wasn't specifically addressed all candidly tell you it didn't hit me until this morning that based upon their lack of any objection in any prior time have waived their right to claim that was not proper they cite the mc not case for the proposition that the fourth amendment may be alluded to in a context but it's clearly distinguishable under mc not in the fact that the defendant and make not was arguing that the dope was planted in they were allowed to introduce the evidence of his non consent to show knowledge to rebut the claim asking or trying to collect handwriting example r s they're talking about the distinction between the fifth in the fourth amendment but clearly in that quote they talk about the rights protected under  man men are considerably broader but the court also states they are not more important than those protected under the fourth amendment and respectfully submit to the court that  lack of consent was clearly improper how about public prejudice though in law to enlighten specially in light of the tyranny of instruction number one and number two i don't think the government ever asked the  to reach any inferences or conclusion based on on the question an answer and they never did but of course that's because the judge should stay in the objection and already told him you can't do this but so where's the where's the prejudice as far as the prejudice goes this case if you look at the case you have very similar if not almost identical situation to the big case we cite to the court there's no cumulative effect but biggs found one was sufficient so we look at the weight of the evidence molly mcguire is confronted by the police in january denies she knows an individual by the name of cases reveal who is the transported together radios initial statement as i'm supplying all this dope to mcguire after they are transported together after they have the ability to collude he changes his testimony in an interview with the government and now instead of mr mcguire being the recipient of these pounds and pounds and pounds of methamphetamine now it's mr coe picky now interestingly when you talk about the prejudice one of the things that happened in this case and the discussions were held about the mistrial and an eighteen in  pelleas brief the prosecutor specifically says i guess we could give a curative instruction that they should disregard them what's he followed up with i don't know if it's sufficient he's the man trying the case he's called three witnesses that have come in there originally were anticipating to testify they were receiving doped from call paki every one of  said either it wasn't true it never happened or i lied to the police when i said that and that was a nine cross examination that was on direct examination the only physical evidence relating to this conspiracy arises out of the consent to search issue and the reason i'd suggest that there is a statement that says i don't know if it's was poor quality what they find in the search is a quantity of cocaine approximately an ounce scales baggies and other items those items are found in a not consent to a search after telling them you can find some marijuana in this console he does not consent to the search that discloses the methamphetamine the scales the baggies and other items the prejudice to mr coe packie is clear was recognized by the government in regard to the conversation on the curative instruction and i respectfully submit to the court batch the error the improper comments we're not harmless beyond a reasonable doubt the context of this case and particularly in the comparative analysis  can be done with united states for speaks the instruction curative instruction that the district court gave was fairly strong so is there anything that you think that the instruction could have said that would have made harmless no here's why your honor this is a situation where you get we cited the fifth circuit case you know you can unring the bell you can't you can't take the skunk out of the jury box you know it's one of those things that every one of those jurors remembers when that dope is being talked about when those scales are being talked about when nos baggies are being talked about when they are sitting in the jury room in front of them they're saying well that came out of the vehicle mr culp actually was in an all by the way although they may not say he refused to consent after he said there's marijuana in the consul a jury instruction is not going to cure what happened in this case no matter how strong it is we are people we are human beings we try and do the best we can but we've learned and now in our district courts we're getting into unconscious bias and when you take that statement added to that evidence yet can't beyond a reasonable doubt say it's harmless good morning me please the court my name's breccia ascii i'm an assistant u s attorney in the district of north dakota representing and i'd states today not surprisingly our position on this matter is contrary to that of mr capecchi and mr hawkins i believe that the record in this case shows that regardless of whether we even address the issue of whether this was proper or improper we're going to have to move on to the prejudice thing and the prejudiced side of this is where i think their argument fails but let me ask you on what assuming that it was improper do you bear the burden of showing that it was harmless beyond a reasonable doubt or  burden of showing that he was prejudiced by the question answer i believe he has to prove that he was prejudice and in this case again just pursuing for argument purposes that we are in a situation where the improper question was asked and we're going to go through the cumulative effect strength of the evidence curative instruction analysis we do have to keep in mind i think that the order from judge erickson at the district court indicated that this error was  exact words or believe were that it did not have little potential for prejudicial effect in this case and he went on and on and analyzed based on the evidence and so on but as far as the cumulative effect on  too i want to note that there was only bass with seven words and for four day trial there was the question of did you get consent and three word response of i did not and i think that's important when you look at the case law that's been cited in our brief such as figaro and hernandez where a single remark over the course of a number of days does not necessarily prejudice the defendant in the cumulative effect of it is minimal in this case i would also note and this is something again that i just picked up picked up on in reviewing a little bit here that if we look in this case the actual testimony from the transcript on page four hundred nine and four ten where this objection and so on came from when the question was the deputy had reviewed his report and we started to go on what happened after that and that's when he responded basically indicating that he had both of in the back seat of his vehicle and i asked for consent to search the vehicle at that point the follow up question was did you get consent and then he said i did not at which point the objection occurred when we got up to sidebar with the judge at that point my question was basically asking because he had asked for consent to search the car because mr harkins had referenced that he was moving for a mistrial based upon the exercise of mr capecchi his constitutional right to remain free from search and seizure so i said because you asked for consent his response no because he refused if you look at the actual words in the testimony it's not even clear i'm not making you know a point that i know what was going to happen or what inferences can be made but at no point does a deputy say i asked mr capecchi for consent nor did i say did mr capecchi consent to the search his name was not referenced at that point and we knew prior to that that mr capecchi was a passenger in this vehicle the vehicle was registered to his cousin danny foss and his girlfriend tonya large was the passenger in the vehicle or was the driver the vehicle to make an inference from that that mr capecchi is the one who is responding or refusing consent you know that's a question that's really not answered it's hanging out there so to simply draw the conclusion that his rights were violated because of those rather vague responses i think it is maybe a step too far from the defense moving on from that lawyer he relies heavily on beaks in this case and in that case it was it was a very methodical approach that the assistant u s attorney i believe was had gone through in an attempt to establish kind of in a backdoor way the prior conviction of the defendant as well as that he lied to an employer and worse than that was the fact that there was a pretrial order in place from the court indicating don't do that don't bring that criminal history up until you have permission is it is it your view that a single question could not be sufficient to cause sufficient prejudice no it  be i would agree with that you know i'm just saying in the facts of this particular case i don't believe that it was such a prejudicial thing to to do that what about what about your counterparts argument that this case depended a lot on cooperate or kind of testimony that shifted and that anything that the jury might get from or infer from the defendant himself would carry significant weight to ultimately decide who to believe in or not i don't believe that in every case that we have i've prosecuted hundreds and hundreds of drug cases and we almost always have people changing stories from one time to another an interview ok that happens the fact that in this case they did that it does not surprise me they're under oath the jury gets to decide which version their  statements to believe both of them are brought out on direct and cross exam so they're fully aware that stories changed i don't know that the scales are tipped by one question where it's not even clear who twenty of it he's talking about where the deputies answer painted mr capecchi is a liar about all of the stuff and that that is like the i think he went on and indicated in there too that this was kind of the that broke the camel's back and so on and in reality if that question painted mr capecchi as a liar i would suggest that had virtually zero impact on what the jury thought of him because four zero seven four eight of the transcript the deputies testimony is where he's talking about how mr capecchi flat out lied about his identity to the deputy at the beginning of the traffic stop so if we're going to hang our hat as mr capecchi is brief seems to argue on the fact that it painted him as a liar he did that himself prior to that when he lied to the deputy so i again i don't think that the the balance has shifted in any way as a result of that one question i don't think it broke the camel's back i don't think it created the indestructible house of bricks versus the house of sticks that mr hawkins has argued i think that the evidence actually was strong in this case but what is your position on whether it was air are you asking us just to jump over that i'm saying that the court can jump over that i think even in looking at the district court's order i think the district court has kind of indicated in there that it was  error to do so to make that or ask that question but then the court went on and analyzed the same way with the prejudiced so you're not disputing the district court's conclusion there i'm not conceding it but i'm not going to dispute it here because i don't think you need to get  t i'm getting i think it's something that certainly could go either way it's not as clear cut in my opinion as what the defense would argue about this based upon my analysis of how you know inferences from a defense refusal consent if it's not a fair response to a defense claim and that's a tenth circuit decision but i think that that idea is that behind that is that it's not something that you want to have a per se rule that you you said it it's improper and it's reversible i think you have to look behind that at the facts and circumstances surrounding that alleged improper conduct and here i think if you look at the improper proper balance there it's again not as clear cut as they would say based on the way the testimony came and again i think the curative instruction it was given was strong i think it's interesting that mr capecchi his argument is at one point that it's so strong and good that it's showing that it's improper but then on the other hand it's a waste of the court's breath and it's meaningless to make that instruction to the jury but i think it  strong as one could get and was appropriate and i am out of time so i thank you for your time that the court affirmed the lower court's decision but just like to comment on mr coe paki's credibility he says mr coe paki proved he was a liar he initially told the police officer's name was donald it's an artifact he corrected that he explained that the reason he lied about who he was was because he didn't want to get arrested because there was a warrant out for his arrest he admitted that he had drugs in response to questioning in the consul marijuana this incident relating to the only physical evidence that there was everything else was cooperate or testimony or circumstantial evidence is that drugs that came out after it was elicited that he didn't consent to it they brought a dog out they alerted they searched the vehicle they found