reasons and on prejudice grounds now the government argues that our prejudice argument or your objection wasn't specific enough about why it would be prejudicial and i think other than that jailhouse phone call was there anything that one can certainly your honor and i would argue that it was plain error to admit the probation officers testimony and and not for example the court said that even if it was necessary for the probation officer to testify they just report should not have allowed the probation officer to state their job title here the probation officer not only his job title but he also stated that he was appellant probation officer the government is telling us that this could not have come as a surprise to the jury in light of the opening statements in which the defendant fronted his own criminal record counsel with is going to make this strategy to get out in front of them get out ahead of some of those negative facts but opening the door doesn't give the government carte blanche to continue to beat the phone from anybody who wasn't involved in the robbery other than the probation officer whose credibility presumably is going to be a little bit better than the co defendants or the  quite right ok could we talk about the rather confusing evidentiary record concerning this phone call we got this is rather unusual letter from the government yesterday yes i was surprised by that too i the audio i assume that the audio matches up with the transcript that the government attached to its brief trip to the jury is reading along a transcript as the audio was being played in the courtroom audio does not get transcribed into the court that the the record you know just does did anybody in the trial propose what would seem to me like it least of potential compromise for dealing call and that is simply to put the the content of the call in and without the jail context was that proposed that was not proposed they had trimmed down some some  stronger because now without this the thirty thousand dollar remark was the main reason why the government wanted to introduce this jail phone call in the first place and without that remark the entire phone call is even  enforcement officers about their failure to find any money on him or in the car was because the government was going to introduce thirty thousand dollar mark and that's a neat number for the government because it's nearly we had known all that eight months ago we could have avoided this problem but that depends on hindsight it's not available to the district judge that's true your honor but i would i would argue that for nearly all not about whether or not i understand it you know obviously means the game a trial a good deal but but to say that the district judge here and by denying the separatists is a pretty steep hill it seems to me regarding the content of the calls he claimed that the content of the calls and the statements that the defendant made in the calls made him look quote addict slimy manipulative the actual jailhouse origin of the calls was never challenging the defendant was put on full notice of this before the trial this is at appendix twelve the government explained to the district court that it during its opening statement was planning on introducing the call saying to the jurors you're going to hear evidence from the defendant in jail it is that we don't think that it actually changes the calculus very much here it is true that the easiest way perhaps to show the probative value of the phone calls was through the admission of a thirty thousand dollars value but that wasn't the only thing the government argued before the district court in the final pretrial conference the government also argued that the fact that it was being referred to by the defendant as the fact that the defendant mentioned that it needed premium gas that he was very that another individual was driving the car all went to the value of the car to him and more likely showed that he put many of the robbery proceeds into the car even if you know the exact thirty thousand dollars value and so we think of that was there any reliable evidence about how much money actually changed hands with the perp purchase no the government i think this is on page seventeen eighteen of the appendix the government was asked by the court if there was any more concrete evidence regarding the actual purchase of the car and the government searched and couldn't find any of the only evidence the government was able to find in that regard was the fact that the car was registered to miss regina williams and the defendant paid her in order to register the car under her name but as far as the purchase of self that was the defendant's number under the name juice but again to a certain extent because the f b i agent was simply testifying to what mr thompson had his phone and mr thompson individual of the government was trying to burden showing another difference about we think is the humility of the nature of the evidence and back and the non commutative nature of it here simply because of the kind of impeachment evidence that was being offered against the government's other witnesses and finally a question about what the find brandishing and after having established that that ever existed this court then asked well was there a miscarriage of justice and only reaching that question about trying to save the sentence from what otherwise would have been vacaville to the court try to assess whether or not the jury instructions were adequate on roseman grounds and found that they they weren't this case is certainly different the jury was asked specifically about brandishing and in another difference from armor the jury fear did happen and events knowledge instruction that was offered to them and it was in count two the count that was clearly connected by the statements of the district court in its instructions this is particularly true i think between pages fourteen into eighteen of the trial