examination by the government i'd like to start with the cross examination issues the second issue in my brief at the conclusion that mr didden used to read testimony and he was the last witness at trial he testified as to why he did not voluntarily return to the u s once the indictment against him was returned and what he testified to was that you were scared to come back because in a conversation that he had had with one of the prosecutors and but instead of the government as the case law this court and commonsense requires its head of the government calling the case agent to testify as to what was said in that interview the prosecutor became his seventy two the first question from the prosecutor was do you know he said mr de niro you know it is a lie to say that i said i was going to revoke your citizenship it was a general jackson by defense counsel it was overrule and mr dean it was forced to answer that question there's really two problems with that question number one it's valjean because he's talking about himself as the basis for the question and number two is forcing mr i did a to call him a liar us versus sanchez talks about that and that's the mistake of all conclusion from the first question and the answer the second question was not even a question was just simply testimony the prosecutor said i never certainly no harmful air as to the first and second questions the prosecutor says these were appropriate questions from the prosecutor to allow mr dean a chance to correct his false testimony but that's not what need to call that third person to address the dispute and in this case even though the case eight cases it was sitting right next to the prosecutor and presumably could have been called in rebuttal with two questions were you there the prosecutor a liar and the prosecutor calling mr ting a liar and the reason why this is harmful in this case is because of the nature of the defense and the nature of this error this case rose and fell on the testified at length and direct and cross about these pieces of evidence and he testified that he didn't know specifically what his wife was doing with these contracts and didn't know she was substituting the batteries and so given the nature of the case and given mr deniece defense which rested almost entirely in his own testimony his credibility was central to this case and when the prosecutor went down this road and personally v for the fact that mr haye was lying about that issue and personally attacked his credibility that was extraordinarily damaging to mr d n a and went straight to the heart of this defense as to the  district courts errors we were used to in our brief the first one concerns the district court's refusal to allow mr d n a to testify on direct that he did not make a statement during his interview with special settle i think probably the government's strongest evidence in this case was the testimony of agent settle what he describes what what mr he had said during his his interview on in july two thousand and eleven and testify to was that he did not make a statement so there was no out of statement being offered by the defense that the right exactly right and so that was there and that was another crucial error in this case because again t right to rebut that not by hearsay statements but by simply saying i never made those statements in the first place so that's the first error by the just record the second air by the district court involves the admission of exhibit seventy three that's the the spam e mail about the world's most dangerous book this was a spam e mail received by mr dean a fair way to two thousand and four before any of this started before government big bids on government contra it started the serious when he forwarded this b m e mail to his wife yet this is something that comes in to paint mister someone who's who's likely to commit crimes that it was propensity evidence and so that day jury trial in which the jurors heard from over one thousand different witnesses saw over two hundred fifty exhibits and as a result of all that evidence the jury convict the defendant of a seven year scheme to rip off the military by providing counterfeit knockoffs batteries that navy personnel unwittingly installed on to naval battle ships including mission critical systems aboard those battleships now you planning and offending the ruling that this was effect confessed i acknowledge your honor if the question then yes or no did you tell agent said all that you knew about the contracts then there would have been no legitimate hearsay objection but the question as phrased appeared to call f harmless error for at least four reasons first the defendant was able to testify over and over and over again about the substance of the hearsay he claims was improperly excluded i e that the defendant knew nothing about the hundreds of contracts his company entered into you over the course of seven years you nothing about the two point seven million dollars flowing from the department of defense into his account and not only that your honor the fact that the definit initially denied to the keith agent knowing anything eighty thousand batteries that my company apparently shipped to the government it was only after that event was confronted with the evidence against him and told that his ex wife and coconspirator had confessed that his story began to change this is that government's ex urbs to twelve it was then and only then that the defendant admitted well our company doesn't have a halo over our head it was then and only then to cover the defendant had specific recollection about batteries that he and his company shipped to the government that didn't meet military specifications for example certain batteries weren't designed to withstand high temperature environments even though that's exactly what the contracts he entered into that into with the government called for and he's only explanation to this was well you know the knock offs were good enough for the government so in other words this same pattern same pattern that occurred in the pretrial interview took place right before the jury the defendant on direct examination issued blanket denial after blanket denial i had no idea what was going on at my company because i was floating aboard my yacht in the caribbean then on cross examination the prosecutor confronts him with the evidence against him including invoices with his handwriting on them getting e mails that he with his ex wife about how to respond to questions being raised from the defense logistics agency about why he was receiving these batteries that didn't appear to be authentic so in other words your honor not withstanding the ruling on the hearsay objection all of the evidence was before the jury all the evidence the jury needed to make a well informed decision that due to cation of the defendant's guilt or innocence was placed before them a third your honor another reason why any error here was harmless  language issues defendant was a native french speaker because the case agent didn't record the interview because the defendant may have been intimidated at the time because the interview was can conducted concurrent with the search of their finance business and the unmistak possible against  interview would have mattered little to the and the confession was yes i knew about these batteries the implication is i knew nothing about what was going on in my company whatever how we want to characterize it if the testimony that the defendant seek claims was improperly excluded would have mattered little in the context of all the evidence that was introduced and that includes testimony from nearly every one of the fence employees who testified that that it was defendant that pop them how to assemble those batteries is that fenech prepared written on how to how to put together the knockoff batteries it with defendant who actually told his employees where to place counterfeit labels on the batteries so the government wouldn't know that in fact there were knockoffs that there was testimony from several witnesses that the defendant was the one that told them where to use chemicals and lacquer thinner and spray paint through move made in china markings that would have given away the fact that these batteries were the batteries called for by the contracts there was testimony from  yes your honor so admittedly these three questions were ill advised and the defense it's the government has conceded that at least the second question which certainly venture to closer to clarity of was  improper that said this is not a case that fall squarely at least within iran how guzman for various reasons including the fact that it was the defendant who introduced the out of court statement of the prosecutor and said of the other way around also the fact that the government did call the casey in to testify about the pretrial interview and then it was defendant that took the stand and invented a separate meeting untethered to any place in time and or time and certainly making no mention of any other witnesses that said your honor at the bottom line here again is there there was no prejudice and that's for at least three reasons first this was this was one line this was pure throwaway testimony that had absolutely no relevance to the defense of guilt or innocence in this case it didn't merit a single follow up question from defense counsel it didn't mention a single mention by defense counsel at closing arguments in fact it was never mentioned at the trial again and second your honor this is simply was not a close keast in which a handful of questions on cross examination could have seen for tide turned the tide and that's because of the volume of evidence again i want to over the testimony from all the employees at the company but that testimony was also corroborated by documents the jury saw e mails again between the defendant and his wife talking about how to throw the defense of logistics auditors off the trail convince them what they were receiving were authentic the search of the defendants business found invoices for a single genuine battery all the while the fan and his company claimed to be shipping hundreds of thousands of these gentlemen batteries to the to the government the can see with the testimony of the invoices that were doctored with the wideout of the peeper overlays all to make it look like what the fan and his company were doing were ordering the genuine batteries from companies like motorola when in fact all they were doing was ordering one so the defendant could devise a way to reverse engineer those batteries the jury saw military battery orders with defendants hand running all over them juries even saw a video of defendant hendrie handling battery shipments that were bound for an aircraft carrier in san diego the very statements he claimed to know nothing about so fence counsel you suggest that well my client had had a defense but the defense really boiled down to you i knew nothing about the hundreds of battery contracts my company went into i was just floating on my yacht for seven years and the fact is that defense fell completely apart it disintegrated on cross examination of the defendant where he was forced to admit that yes i knew my company was doing business with the government yes i was regularly apprised of the payment on and on those invoices yes of course i knew all of that so there really was nothing left and finally  another reason why the misconduct here was harmless is because the district court and struck did the jury both before and after the trial that the questions from the lawyers of course are not evidence and specifically instructed the jury that anything stricken should be ignored and so advised the jury at the end of trial unless there are quite more questions about that particular issue i'll turn to trial exhibit seven o three  teach readers among other things how to escape offshore and the evidence showed that that is precisely what the defendant ultimately did after his business was searched after he was presented with a search warrant and search warrant affidavit implicating him in a criminal scheme which he was charged three months later he sold his house and went to live aboard his yacht on the french side of the island the caribbean island of st maarten where he could not be extradited  government tried to try to introduce a redacted version of that e mail we receive an argument from defense counsel that were misleading the jury that this book wasn't just about snooping offshore but dozens of other things that really had no  the scheme that made it so amusing to the defendant that you forget right onto his ex wife with whom he was he was plotting the scheme ok thank you not overwhelming and why not why not why is it not over what was just an overwhelming number one because mr t age arrest all the points they were raised by the government yes the government scored points in this case the government scored points with this testimony from why these issues were not as the government said and he gave a viable defense as to why he did not know what was happening and so the government takes off of all these things that it introduced but i've asked the court to go back and look at mr didden his direct and cross i mean he  and direct he said he didn't know and i'm cross and he was seventy eight pages seventy five of it was permissible and the government had a very hard with these points with e mails with statements from witnesses and account as to why he didn't know for instance with respect to of training people to make the batteries he said he did that just for general commercial purposes not specifically for military contracts in terms of the folders on how to design batteries again he said he did that for general commercial purposes and not heard specifically for any military contracts and so pages sixteen through eighteen eleven through fourteen my reply brief i specifically go through each of the points raised by the government in its answer and i specifically point to the place in the record where mr da addressed the issue and explained why it wasn't as the government said and so the record i don't have to argue it here it's a label initially for commercial purposes and when he was gone that label was copied by other employees at powerline when he was in there and then put on batteries with respect to dinners to take to take markings off batteries that were bought from other places he says you c over over seven years and they say he's part and parcel of this of this huge fraud over seven years with over eighty thousand batteries there's about a dozen e mails that the government interviews to trial about a dozen e mails over seven years if if he truly is in the middle of this huge government procurement fraud over seven years there's going to be a lot more than a dozen e mails he they had writing our documents he said that he did that when he got back in two thousand and eleven there was a huge bag of mail that had been opened because the company was in disarray and without knowing what had happened in the prior six months when he was out of town he tried to get some invoices paid and bring some money into the company the video of him touching the batteries that eventually went to the navy ship he says he didn't he didn't work in the warehouse he wasn't of all the shipping that he was there and the batteries were there but he didn't know where they were going to hear in those after what the batteries were and so he dealt with all the points the government raised he gave plausible reasonable explanations as to why what the government said was need in this case he testified he gave a credible account as to why he didn't know he addressed all the points the government had raised and it's in this case and when he was done he had given a plausible viable explanation as to why he and you want to is exactly right about the agent settle issue he can he can come to trial and testify or he wants to he didn't know but if the government is able to show a confession from two thousand and eleven