him as the driver did they know it was direct evidence but it was highly impeachable evidence those but you didn't succeed in impeachment that's that's the point counsel what we have to view the facts in the light most favorable to the jury's verdict and i'm direct evidence testimony from a percipient witness that he or she saw the defendant commit the criminal act isn't that correct but these were three witnesses when with intense motivation to implicate mr possibly in this on your city or arguing impeachment i'm asking you a simple yes or no question isn't that direct evidence that's why i said the only direct unimp interest in mind that have said as much the government in closing argument told the jury that this was the most important corroborating evidence against mr proselyte the district court in analyzing mr possum with twenty two fifty five petition said this but it best in that circumstance what you have is a driver who is works for someone else driving a truck with the secret compartment the day before these delivers there are any number of other defenses that could have been presented in that case such as crossing and two of the deliveries that was the day before and when it was the day of the delivery but the crossings were quite a ways where they weren't they the crossings were in remote parts of northeastern washington and so it would take a while to get from there to here in any event though it's a crossing that could be made in easily in this day sort of my question yes yes you really need to address my question you're making a great heart you meant but please help us i bonds are  but again that doesn't implicate him as a knowing member of the conspiracy someone a truck driver could drive a truck to a warehouse and then leave it and someone else unload it this very truck someone else was apprehended driving this truck with money in in the truck in the secret compartment the government let him go how many crossings did the truck me in the course of the government investigation the government only introduced three crossings i thought i thought i read somewhere in the record it was thirty to forty one of the other witnesses said there were thirty deliveries but the government only introduced evidence of three crossings of the government their own brief in this case when they said that the testimony of mr possibly was introduced to show consciousness of guilt awareness that he was working with dangerous people and to undermine its effort to show that other witnesses had lied so yes the gov the jury may have believed the other witnesses frankly it may not have it might have said i don't believe these guys at all but we've got the words of mr possibly from his own lips i don't care what these guys say ultimately if you don't have the words of mr argument that the jury could  convicted on the basis of the other evidence that's that's not my argument at all your honor your honor i if the case here was just the evidence without mr possibly and he had been convicted we would not be here before your honor saying that is fissions of the evidence case because i admit that the evidence could have been sufficient to convict him but that is not the standard before this court there are many cases where this court has decided that even if the evidence would be sufficient to convict someone absen tainted evidence that's not the standard for prejudice the standard is whether there's a reasonable probability that but for counsel's unprofessional errors the outcome of the trial would have been different where there's a reasonable probability your confidence and how they would have decided on this case is enough and you just need to look at the word the united states supreme court when talking about confessions when they said that a confession is probably the most probative and damaging evidence that can be presented against a defendant  their story but then it didn't matter the drawing had no choice but to convict him because they have the words of his own mouth they have the government describe it the most important corroborating evidence against him because of that it's no other good morning your honor still miller on behalf of the united states the crossing was a support idaho an answer to the question the defendant's position here with regard to prejudice and with his position as to why there was a reasonable probability the jury would have convicted is that the witnesses the three witnesses who gave direct evidence of his client's guilt might not have been believed but for his statements that's not right because there's another witness who page twenty six and she says that in july of two thousand and eleven that is before mr postol when he was indicted before there was any public indication that the government was aware who he was mr bennett said the driver's name is jim and gave a physical description of mr postal lady consistent of the driver consistent with mr postal lady and then on page twenty seven of the supplemental excerpts of record mr bennett described how the hidden trap in the white hyundai trailer operate it that information was confirmed when the truck was eventually found so in order to disbelieve mr bennett the jury would have also had to believe that agent lassiter was lying as to what he told her in march of two thousand and eleven before mr post away he was implicated  he was the government had the records showing that he'd crossed but they didn't have any other information about him so he had to be a very lucky cooperator if he thought if i say jim he got very lucky in choosing that name as your honor's questions suggests the evidence from between february and april that this truck came to the warehouse in kent three times and that this truck was unmistak a red volvo truck with a white hyundai trailer it had a b c license plate and the agents who looked at the license plate knew it too just as were and knew that a third digit was one or seven and this truck came across the border three times about a day before a truck that was the same color a trailer that was the same color and a plate that matched two and a half if you take the one or the seven that's a half digit i think it's more than that if you look at it as an issue of probability in light of agent lasseter's testimony the suggestion that the jury we don't know whether the jury believed these three witnesses simply doesn't give rise to a reasonable probability that he wouldn't have been convicted if his statements had been introduced what was the physical description you're right that's the bare question was asked what was the physical description consistent but that's all that's right your honor so but but he did say at that point jim and there was no reason he would know what the driver's name was so he got awfully lucky if he was making it up in order to get a benefit from corporation your honor i'd be happy to address our argument that performance wasn't efficient if you'd like to hear otherwise well ask the judge for i'm good thank you for your honour's there's a very simple answer to the state's point which is that they identified the drivers jim it be very easy to nonetheless not convict mr possibly if they don't fight him at the driver because again he's a truck driver he sent to a warehouse just because he drove the truck to the warehouse even though even if the jury believed that which again the very bare bones description with the most common name in america but even if the jury did believe that he drove the truck to the wells when these guys knew him that doesn't necessarily mean that he's a knowing member of the conspiracy when he did the compartment had a pretty sophisticated access to them and it absolutely did ok and so that the three coop ors basically testify that jim or the driver knew how to trigger the door the trap door whatever it was open the hidden compartment they did but again that's entirely dependent on believing that they could know they could have known how to access the compartment the driver could not have been i guess what bothers me about your argument is that in order to be convicted of treason it only requires two witnesses here we have three and assuming that the jury credited their testimony and the government supplied all this corroborating information it does seem that the district court correctly characterized the evidence is overwhelming so trying to balance out against the harmful impact of the defendant's own words i'm having a hard point reaching a conclusion you're urging us to reach that there is no reasonable probability th question is not whether there was sufficient evidence to convict it's whether there's a reasonable probability that he would have that the outcome would have been different he may have been convicted without the said i thought i was well i was responding to your point about two witnesses vs three witnesses that yes it might have bene no but we don't know that it was not the government themselves said it was the most important corroborating evidence against him i mean the supreme court has has made that same point that the defendant's own words are always something that the jury wants to hear which is one of the reasons why we have the fifth amendment exactly right but that doesn't necessarily answer the test that we apply in this circumstance but you have three witnesses all of whom had profound incentive to implicate mr possibly they all got deals out of that they all only at least two of them only identified them after they had a possibility of a deal was broached they all received benefit from cooperation what do we do about mr bennett again even if you believe everything that he said about that he knew the driver was jem that mr possibly was the person that drove it doesn't necessarily show that this possibly was a knowing member of the conspiracy look at how the government described in their closing what they said are those the words of some dupe so unwitting courier that the government was outlining what the defense would have been if they didn't have mr postulates own words there's clearly a reasonable probability that the outcome would have been different you know how detailed  description was given that was given back in two thousand i do know so i can only ask this court vacate the conviction and remand for the proceedings thank you