the honorable united states court of appeals for the st circuit is now in session all persons having any business before this honorable court may give their attendance and they shall be heard god save the united states of america and this honorable court today's cases will be called  and james stewart that is key in this case and i'd like to start with the court's indulgence by just briefly making reference to the facts in this case and i do so because the facts are very important in the early morning hours of in this case and did not appeal and is not the subject of these proceedings the purpose of the trip was to lay approximately twenty lobster traps at sea after the traps were laid the trio those bales of court and if you can imagine his dilemma your honor he is on board both where he is my dad was from shore and contraband is being brought on board that boat by the owner and captain of the boat but council excuse me he's also identified by one or two police officers as being as being one of the people who upon meeting by the police attempted to with the money oh this officer no reasonable juror could have found that those facts for corrupt or were true what if that officer did by just say he testified judge judges that approximately one hundred and thirteen feet which he estimated to be twice the length of the courtroom used by this very court for oral arguments notes and why he was able to distinguish two of the three men that were allegedly throwing b overboard while they were dressed in water resistant gear that covered much of their face and their entire body probably do you bring to the council didn't you bring this argument make this argument  closing argument and i did and it was not accepted by the jury it apparently it was rejected by the jury but mechanisms do exist in the law to correct this carriage of justice because juries told always get it right and in this case i believe that they got it very very wrong hear your honor i want to put this in context this was not a large vessel it was a very small fishing vessel it did it does not take a lot of skill to to get to captain to spell it was it was l our client testified that he never touched the bands that he never threw any bill overboard but i would say that i have to throw bill overboard is is insufficient to simply to involve him in the entire drug trafficking venture h and that he did not ok that was his testimony what one other fact that i would like to to highlight because i think that it is also very important we present the testimony of a witness excuse me the last name move on and it is a painting who was the person that was actually supposed to go on that fishing venture and he suffered a sprained ankle and at the last minute got a speedo sokol asked my client just hours before the finder the location so that you could later go retrieve them and our clients asked us to get that the fish finder from the boat because we can prove where those lobster traps are but the fish finder was lost by the government while the boat raptors in this case does not support any finding that there was any a preparer there was there in there and was there any evidence on the boat that suggests or is going to that would corroborate the account that they were there to set lobster supported the defendant's willing participation in this drug smuggling scheme and there is no reason to stop the jury's verdict to that effect at the outset everyone agrees that the two defendants here and one other man one count us ago were intercepted by  that the vessel was engaged in obviously to legal activity is not meaningfully controverted here because as mr stewart himself testified it was obvious to everyone on board that these bales contained a contraband so on top of those undisputed facts the jury received consistent testimony from both agent and sergeant diaz that they had witnessed two of the boat's occupants frantically dumping cargo as the police approached while the rd occupant remained at all times at the steering wheel operating the vessel that recollection shared by both testifying officers is consistent with mr stewart's testimony that one kind of scale as the only one who knew how to operate the boat was at the captain's wheel as the police approached so as i believe judge sonia pointed out it's undisputed here that there were only three people on board and that one of them was captaining the vessel at the time of the interdiction and that means that the consistent testimony sergeant that two people were at the side of the boat throwing bales into the sea necessarily implicated both stewart and escalation regardless of how accurately agent could make out their faces as he approached and the fact that stewart and escalation participated in those frantic efforts to avoid discovery of the cocaine is alone sufficient to establish the nd step of the two part guerriero inference which is that each defendant was ready to assist in the criminal enterprise that's for two reasons st this court has held that even ancillary services performed to advance the conspiracies objective of avoiding police to action are sufficient for a reasonable jury to find that the defendant in fact intended to convictions in united states versus pena santo against a similar mere presence defense on the basis that quote once the individuals on board the yacht detected that they had been spotted by law enforcement they started moving or radically on the boat and multiple crew members started throwing the bags of narcotics overboard so that constellation of facts the presence of a massive quantity of drugs on board a small that's all manned by only three people the circumstances under which they were intercepted racing back to shore in a known drug trafficking corridor during the early morning hours and the consistent testimony of law enforcement officers that stewart and ask a lien were the ones frantically dumping the cocaine overboard while cut us kyo captain the boat is absolutely sufficient to sustain these convictions under this court's inferential framework and guerrero turning to the trial errors that the defendants have asserted i think that the district court acted well within its discretion both in denying admission of their demonstrative aid and in the instructions it gave the jury following closing argument i counsel ok the guy asked you a question on the reenacted so called reenactment evidence in the criminal context but still under the same federal rule of evidence this court warned that jurors made the misled it because they do not fully appreciate how variations in the surrounding conditions as between the original occurrence and the stage of that can alter the outcome and consequently the trial judge enjoys a great discretion in this area that discretion was appropriately exercised in denying admission of the reenactment video here as the government there was reference to your opponent this concerns the prosecutor's inadvertent misstatement during closing argument that defense witness hernandez had suffered a broken ankle rather than a twisted or sprained ankle here i think you know that there is no abuse of discretion and the discords instructions to the jury and in any event no conceivable prejudice could have resulted so as a threshold matter no one has energetic jeff to do at the time it was your honor ye so mr stewart's counsel did preserve an objection to that misstatement along with two other parts of the prosecutor's closing remarks but she didn't ask a court for any particular relief at that time she didn't denied the objection but the gist of court did and shortly after closing arguments concluded and mr stewart's counsel had raised this objection the district court reminded the jury that it was their recollection of witness testimony and evidence rather than the attorney's characterizations of that evidence during argument that controlled their fact finding during deliberation and as we know from supreme court precedents jurors are presumed to follow d their instructions and there's no reason to think that they disregarded that one and i do want to talk about prejudice on on that last point because i think even if the prosecutors misstate and had somehow caused some confusion about the extent of mr hernandez's injury that kind of tangential aspect of his testimony at most goes to the question of whether her hand was busy able to help carrasquillo load lobster traps and the government's theory at trial was agnostic as to whether there had ever battened lobster traps on the boat i'm a witness with respect to the question whether there were loves your traps on the boat it is there anything in the record that is supportive of this notion that  evidence during the trial but i do think you know there are other pieces of evidence here that suggest that there probably were not lobster traps ever on that boat we do have you know the absence of any other lobster fishing equipment on board the boat when it was seized and the fact that mr hernandez testified that mr carrasquillo the boat was not equipped with a winch which is a device necessary to pull lobster trap stopped and that it exhibited none of the wear and tear on the sides of the boat that would typically characterize a boat used for lobster fishing so the jury had significant evidence in front of it that this boat was not actually used for lobster fishing but was no longer to be yes your honor i believe and i apologize i was not trial counsel so if i do or if my friends on the other side can correct me on this if i'm wrong but i believe that traffickers smuggling cocaine over water the prosecutor circled back to that testimony and emphasized that during his closing argument and even mr stewart's counsel acknowledged in her closing argument that mr valentino had testified that using lobster traps to disguise drug trafficking activity is a tactic that is commonly done so at most we are talking about substituting one inculpatory inferential chain for another here and i certainly don't think that's the kind of prejudice that