defendants have the state of mind that was necessary to prove that they were members of the conspiracy to transport drugs into him to where the rico so the question raised was whether there was an agreement whether these particular defendants agreed to participate and had the purpose of transporting those drugs to to where to rico would you agree with  case i can't concede that there was such evidence and what the main point that i'm that i'm arguing refers to the first argument in the briefs and that is that there was improper expert testimony on this issue that a agent was permitted to testify before the court before the jurors that these defendants that the purpose of these defendants was expert testimony was improperly admitted and there is there is a particular statement and i want to be accurate in quoting the statement there were a couple of different statements by the  but one in particular that was objected to was the expert statement the people that are on those boats are there for one purpose and that's to get the drivers where they where they are going that statement was objectionable under rule seven zero four which was given your honor it had to be that's true but it had to be absolutely one hundred percent clear to the court the nature of the objection because there was a motion by the defendant to exclude this type of evidence there was argument before the now that the that the expert should not be permitted to testify to matters that were in the were within the purview of the of the jurors the business expert was the with the court  her i'm not saying that that would not have been preferable your honor but of course we know that the purpose of an objection is to make it clear to the court what the what the grounds are for the objection and they have been such an extensive argument regarding this precise issue before and the expert made this before this expert made this statement that it had to be clear the court counsel why when when you object on the grounds of repetitiveness the judge awesomes how only one question was this question go over him the matter that's already been testified to by this witness you know he doesn't eat doesn't general when boats like this are transporting drugs this is the situation no your honor this is not a speck of m m b beauty when he when he's saying the people that are on those boats are there for one purpose and that's to get the drugs where they're going this not reference to this operation that's going to be a much more general well your honor i'd suggest that that's really read in context it's absolutely one hundred percent clear that the that the prosecution was bound and determined to get this expert testimony into evidence the the prosecutor repeatedly argued that the expert should be allowed permitted to testify that these men were not on that boat by happenstance that was the arabic that we that or somebody saw the throw of the rose overboard well it's not true that somebody saw these particular defendants throw the drugs overboard there was testimony to the effect that operating in the last that's why we have yours that's exactly why we have juries and it's also why experts are not to be permitted to testify in the manner that this expert did thank you your  this really good morning i do want to say that i obviously we've divided this up you know given our time but it doesn't mean i waive other arguments other council behind me will be arguing on the closing argument aspect of the trial to raise boats that have been many of them are going to puerto rico some are yolu some are not and you know there has been a list that's been developed in different cases and when you go through the list one of the  the quantity of marijuana or contraband whether the absence of a legitimate purpose for the voyage i just started out with the absence of a legitimate purpose for the voyage there was a legitimate purpose for the voyage to this corridor of the law it was not a strictly legitimate but it was an alternative purpose and in fact the government agreed that there was that purpose and that is that some of these defendants at least some rely on from the government really as i read it and it does not say that it's common on these rogue boats to also be smuggling illegal aliens and i'm sorry i can't hear you there's something about the i say you rely on testimony as i understand that it's common to smuggle illegal aliens on drug boat i don't read the testimony as saying that in the cases to suit us that that's not purpose of smuggling people and smuggling i i understand your honor i fully expected the court to say well you mean if they have an additional criminal purpose that made it ok you know i'm not arguing that i'm just pointing out that many of the case the part of this attorney of brian are you the impermissible expert testimony part of it i'm only addressing the prejudice aspect as it goes to many subjects that's all i've i understand that that is the jury's including the subject of whether there should have been an order of acquittal but so i'm i'm just saying that the second prong of this is now on the  the way were there was testimony that these boats were very often used to import people who wanted to get into puerto rico unlawfully so i just make that point again that yes that was true but this is one some of them say given the value of the contraband that drug smugglers would not entrust their you know they say i don't know bystanders innocent bystanders something like that  or with being on a boat or which they say was handling this these drugs first of all there's no evidence of my client handled the drugs at all in fact many of the cases talk about the crew there was no evidence of the all of these people were crew now there was if you look at the different cases i think there's a case called in for eva that talks about the size of the boat you might know in our crew and if i thinking of the right case and that talks about how the crew  was so large it must have meant that they were carrying drugs because it was a forty one foot boat it would only need a crew of two or three and here was a crew of i don't know how many but more than six and so that's how they were smuggling drugs well i mean it seems like no matter what how what the size of the boat what's had the crew and finally i guess i would like to say that this this list of of factors her a lister mentioned if factors that has been drawn up in all these cases i wo trace back to see where this started and i couldn't find it where there was testimony and some want to go case you know how factual testimony turns into a statement of law and then all the sudden  cross examination the fourth error is the improper regret the exam off the chemist by the prosecutor and finally the fifth there is a misstatement by the prosecutor on closing and yours you may not find it all of these individual errors are prejudicial but in the aggregate we submit that they were devastating to mr bennett's right to a fair trial and i want to start with a misstatement opening essentially the prosecutor  the jurors that the courts have determined that mr payne asunta was was guilty this her words it's already been determined by this court that the united states had jurisdiction over this vessel and th and did the fence chose not to present an opening so here's the u s government telling the jurors which has this experience courts knows when they're in that box in the first day of trial it's there like a sponge you know soaring information yeah but this isn't the jackson and the court tells the prosecutor to rephrase what she says and she makes an effort to do it and doesn't the second time in a way that elicits no objection and then the judge at the end of the kings makes perfectly clear that intent is an issue for your actually your honor there was an objection but they did in this particular instance where the of your face knowledge and intent and what he did what the government is doing in this entirely circumstantial case he he they were putting on an expert to tell the jurors as he told them that mr pena was there for one purpose and each one of the defendants had a specific thirty and i submit yours said that he's addressing the ultimate issue before the jury and it's improper testimony and that impermissible opinion your honor it's not harmless because it became the higher give my priest the centerpiece of the closing argument for the prosecution and moving on to the third error so i call the misconduct many errors can have a stronger punch than in the larger trial coming back to the redirect exam the prosecutor there was there was some evidence that there was a video but the video did not  guideline sentencing range for your client was significantly higher than ferrari's and in judge garcia sentenced your client to was a downward variance sentence well below the distinguish the two defendants well i would just submit your honor that i'm i've looked at the trial record very closely and there are a few factors which i think the court should take into consideration one is i mean all i can say is that this this information that affects how we handle that i mean what places that we have to go into something you haven't been objected to your i simply don't see it in the record we're when a prosecutor as an officer of the court makes a statement of facts and there is and it's not real bomb defense counsel doesn't say all those facts are true or or or that's that's not the case prosecutor during the sentencing hearing informed the district court that during the course of the briefings with gil martinez he admitted that he fueled in operated the vessel in addition  appropriate guideline sentence was two hundred thirty five months two hundred ninety seven months the court did take into account his personal circumstances and applied a downward variance and as the court stated  a sentence below the guideline range is normally not considered a reasonable under these circumstances and i believe that the appellant's argument goes to whether or not his sentence is fair in light of  area sentence but the court at the sentencing hearing asked hill's attorney to consider the fact that there was a nother defendant out montt who pleaded who who entered a plea and his sentence was one hundred eighty eight months and in light of that sentence the court could not go below one hundred eighty eight months and impose a one hundred twenty month sentence which gil advocated for at the sentencing the court wanted to apprise scale of that circumstance so that he could where he could be aware of why the sentence could not be as low as anticipated because that would create a disparity given the fact that   by the district court he had to testify to the price of the packaging and the mode of transportation and the this court is held in florida as they say sues that an expert may testify to a criminal scheme  and and that also applies to a drug trafficking organization and in this case the question that was posed by the prosecutor i would submit does not require the expert to specifically identify the roles of each defendant in this case the question posed in your experience in the cases you've worked have individuals not connected with trafficking of narcotics been involved with transportation that did not require this particular agent to say whether or not consent thing or any of the other appellants played a specific role and his response was very general the people that are on those boats and the boats that i believe he was referring to was the boats that are used for trafficking get the drugs where they're going there for protection they switch out hoses they act as mechanics or captains everyone has a role now i would like to join this course attention to the cross examination pena specifically asked this agent what were the rules of each of the defendants in this case that's what they suggest the prosecutor was attempting to do in response  agent conscient stated that i don't know what their roles were because he did not have personal knowledge and the kind of if you would have said yes and attempted to specifically identify the worlds of each defendant it would have been improper floors was declared an expert and he provided late testimony but he offered testimony as to the roles of the individual defendants that was not based on personal knowledge while this court found it to be harmless they did find era it was harmless because of the w responded during cross examination to a question posed by larry on his attorney later on his attorney asked him about the assets that his client may have been linked to during the course of a background check because the d a day often tries to see what assets are associated with people related to drug activity in this case the government objected and stated that it was outside of the sc direct and that it was relevant over the government's objection the court allowed the testimony and that's when the statement of the agent came out that was not what that was not testimony that the government attempted to listen we have jack to we at that point i don't know how he should be paying or should be entitled to a new trial based upon a question it listed by a codefendant that was objected to by the government furthermore that argument was weighing because it was not raised a trial by pena i would like to address the issue of sufficiency of the evidence and this case we have a small they paint the interior or the the yellow and the dark color blue so that it blends in with the water so it allows them to not be detected by law enforcement authorities we also know that upon detection  guard vessel and i would submit that in light of the close quarters on the vessel and the quantity of drugs in this case we know that the quantity of drugs was well over three million dollars that this court has held that that quantity such a large quantity of drugs permits the quote the jury to infer that the penguins had the intention distribute the contraband in this case heroin and marijuana in addition you have before that in the record lo guard officer looper gay stated that they were not on the ship for a lawful purpose such as fishing as the court stated and i would submit to the court that the their conviction for conspiracy  is something that you know could have been stated differently but once it was objected to in the in the objection raised by penya clearly stated that the government had a burden to demonstrate that the police had the intent to possess or knew that the  contraband was on the vehicle was clarified to the jury and immediately thereafter after the objection the prosecutor attempted to clarify the record that that was not what she intended to state and that the jury was required to consider the intent of the appellant we also can look to the opening statement i mean the opening instructions by the court in which included an instruction that of the statements of our of the the arguments of the attorneys are not evidence and that the jury would look to documentarian testimonial evidence to determine the guilt or innocence of the parties and we also can see in the final instructions to the jury that the jury was required to consider whether or not opponents agree to possess the contraband cocaine and heroin and whether they have the specific intent to possess with intent to distribute so given the instructions that were given to the jury we would submit th times whether or not she had submitted the cocaine for fingerprint test and he was trying to create an inference that the appellant's did not touch the drugs because there was videotape or testimony that show that there was a ever regarding closings the closing argument of the prosecutor that not that's not someone's personal stash right here three point two million is not something that the four them are going to use casually or parties those are the drugs  them are going to sell it at a profit i would submit that it was a permissible inference based on this court's ruling in metals that the prosecutor can draw the the jury's attention to circumstantial can identify the individual defense and you tell from the video that there are six people throwing bales over yes you have the testimony of writing perry from the border customs and border patrol which indicated that there were several evidence submitted that you know that at least two people work hard to throw the bales overboard and that they were observed moving and they were slow to respond to the coast guard's orders to remain still which would also suggest that they were