ignore that is why the criminal justice system is so important and ensuring the defendants that are charged with crimes are afforded due process of the law throughout their entire trial  sentenced for a crime for which they were not charged unfortunately in this case that appears to be what happened to mr adams mr adams as you know was convicted of several drug crimes as well as possession of firearms charges why would you say that the reference to murder was what convicted him here we've got conyers testimony of your client's own statements that he made to the are many constitutional deficiencies that lead to the introduction of evidence that we feel should not have been introduced first of all you mentioned what about the statements from the coconspirators i think is what you were hitting on you know that we raised in our brief that that was improperly admitted by the trial court and the reason why we argue that is because there had as you know there has to be independent proof  the conspiracy outside of the coconspirator statements in this case what it what the independent evidence suggested was that there was more of a buyer seller relationship between m feel that it was a far cry from actual proof of some other drug conspiracy and that those statements by the coconspirator should not have been admitted by the trial court more importantly however  when it goes to mr adams statements that were admitted because the trial court found that he had materially breached the cast guard agreement that he had entered into previously that we feel was improperly admitted because the statements that were allegedly in breach of that agreement were gained through a polygraph examination during that polygraph examination mr adams was asked specifically two questions relating only to the death of mr conyers he was not asked during that polygraph about any of the drug charges and anything relating to the drug investigation and that the cast of our proffer interview however went further than that they did ask him about his involvement in the drugs he gave them information relating to that no point was there any suggestion that anyone in the government that he had lied about those statements now of course you can you know take that a little bit further and say well because he there was deception found at the polygraph relating to the death of mr conyers then he must inherently be somebody that lies however that begs the question of whether the polygraph results were trustworthy can we rely on the trustworthiness of the polygraph his trial counsel had previously and then i did yeah i think in the briefs that they had submitted they initially had challenge that you know the polygraph how do you know what deception detected means at trial they called one of the witnesses that had one of the pretrial hearings had called one of the detectives that was there it was not the detective that had given the polygraph but one of the one of them that had talked to the police or for and said that well that means that he had found to have failed the polygraph well i mean i thought it was accepted that he had failed the polygraph i  issue of whether he actually failed it or not i mean here you have an entry question well that's an evidentiary question but even more than that even assuming that he failed it let's assume that for argument's grimmett was that he had to pass it right material breach no it's just a breach of the agreement isn't it i mean it's it's clear that it's a it's a breach it's a breach of the agreement certainly but does it go the breach is the agreed and why isn't the government free to do what the agreement says they can do would yeah use the information right but the question is on timing right it's a contract but is that where his statements a material breach of that agreement and our human is not why does the breach have to be immaterial agreement let's assume that the breach has to be material it's not the matters under investigation that he's charged with us no that's not in the agree with what you just said that is what i said it's a complete untruthful statement of his knowledge of  matters under investigation there's no there was never any doubt that they were also investigating the murder of conyers your client knew that yes so he enters into agreement knowing going to be or could be asked about the murder and then he's found to  identified is that during the government's case in chief there are many other detectives available including their products detectives that they could call to get this information in but they chose a homicide detective they get through the direct examination during cross examination my client's trial attorney had started asking him if he recalled some things about the narcotics that my client had been involved with and his statement went something like this  say he said that middle of the page yet they ask if he had any if he had any customers if he recalled him having any customers and he said no it still doesn't because i wasn't there for the dope thing and they're for the homicide thing mr tyrone  is dead when did he say there was a murder he's a homicide detective and he didn't say specifically that there was a murder that you told me well you know you did that was my argument therefore the homicide rate for the homicide not necessarily a murder  and there's a homicide detective there to investigate basically and that is not as prejudicial as telling the jury there was a murder i think you also have to don't you infer that the jury then you have to argue that the jury infers that the police believe that he murdered cutters that maybe in fact what they believe but that isn't what this says he's he's investigating a murder conyers is dead doesn't say that this guy killed them or maybe there's a witness maybe he knows something about it we just don't know it is that yeah i think that that information that's given to the jury what they can glean from that is that obviously mr adams is a really bad guy that would if i was sitting on a jury that's what i would be thinking there's a homicide detective that's investigating here mr conyers is dead we've got mr adams on trial for drug charges conspiracy to commit drug charges firearms offenses i think that's pretty prejudicial to him somebody else doing the killing rather than your client i mean the list but their statements the government had agreed were even going to be introduced so why was the homicide detective even allowed to be called we feel that that was why the trial court mistrial here i don't think limiting instruction is enough to cure that prejudice that juries presume to follow a limited instruct that they are except that where there is such where the jury cannot i mean even though they're supposed to follow that that's still in the back of their mind they can't get that out of their mind they've heard it no limiting instruction is it please the court gets for the united states the district court here did not abused its discretion in denying adams's motion for a mistrial based on one unprompted reference to tyrone conyers and and you asked about the language of the comment whether that could be interpreted both ways it could i mean even if even if you assume that the reference to homicide and the reference to tyrone conyers his death applied complies that he was killed or jury didn't have a murder charge before or an obstruction charge before they had six different charges none of those dealt with the death of tyrone connors and here every single factor that this court considers in determining whether the district court of use to the scrushy favors the district court's ruling the first two factors or whether it came in response to the government's questioning and whether this was solicited it didn't come in response to the government's questioning it came during cross examination so those two factors automatically favor the government here there was also a limiting instruction immediately after that remark occurred that limiting instruction appears on page one three eight nine the district court actually gave that instruction twice twice asked the jurors whether they agreed to follow it and then individually polled each juror to make sure that each juror would follow it that because of the presence of a limiting instruction but it shows why the standard of review here is abuse of discretion the district court is in the best opportunity best position to view how the jurors react to that limiting instruction whether they're not what the look on their faces whether they look like they're going to agree to follow it or whether they were scared for some reason those are things that don't translate to a cold transcript that is why abuse of discretion is the standard here and that's why the defendants argument here fails i'd also note that in the final jury instructions i'm referring to page one five zero eight the final jury instructions included the six circuit pattern instruction reminding the jurors that when the district court struck evidence from the record they are not to speculate about it they're not to think about it in reaching their verdict the next factor is bad faith and if you're honest look at the record pa ge one three eight four of the government reiterated that it had instructed all of its witnesses who were at that proffer not to talk about the homicide or tyrone conyers his death so there was no bad faith on the part of the government and i would also direct the court to page one zero one five it's at the motions hearing before trial it's two days before trial that's an important page because on that page the district court asked the government about this issue what it had what it was planning to do for the proper statements and the government explained that it had talked to all of its witnesses including the homicide detectives and had told those detectives not to talk about the murder defense counsel was then asked whether that was ok defense counsel said i think this is an exact quote that's agreeable judge so for defense counsel now an appeal to claim it was bad faith for the government to call a homicide detective and the government should have known that by calling a homicide detective this would happen ignores the fact that the fence counsel understood we were calling a homicide detective and understood that two days before trial and thought it was just so hindsight being what it made wasn't bad faith just to call a homicide detective in looking at the transcript that follows this exchange between the homicide detective and defense counsel one of the things that they agreed to do was to have a written motion filed later that could be responded to was there such a written motion raised the it was a very small part of the evidence we have admissions from the defendant where he admits to dealing in heroin we have those toll records that match up the timing of the phone calls with the timing of the  a agents surveillance when the original heroin deal happens on october twenty eighth we have the surveillance itself a number of the agents talking about how they saw including one from a plane how they saw these cars meet up and how they saw the heroin deal go down and we also have the evidence found in adam's house and that by itself is quite damning it's a kilogram and a half of heroin it includes a kilogram press a scale packaging material thirty thousand dollars in cash a drug ledger and pretty much any indicia of drug trafficking you can imagine was in his house there was quite a strong case in it in the context of that evidence it's unlikely that the stray remark made any difference whatsoever i'm happy to answer any other questions about that issue otherwise i'll move on to one more on the proper letter that defense counsel is discussing by failing a proper examination on one of the central open issues in this investigation adams breached the plain language of that of that proffer letter but doing a polygraph examination i mean you breach one of the key provisions of that proffer letter that proper actually does not have a materiality gloss for the polygraph examination as your honor stated its language is quite clear here there passes are a fails and if he fails no matter what its on then the government may use any of his statements against him a trial there is no material materiality gloss here and the this court has held many times that this is treated like a contract where you look at the plain language of the agreement and that suggesting by this question is the wrong with this but i'm trying to remember whether i had ever had a case where an up or down passing a polygraph would control whether a proffer could be used as evidence is this i'm just curious as is usual unusual i would say it's usual but it does happen that's the case we've cited for cases in our brief from the fourth circuit one from the first circuit where it did happen and i guess i'm more interested in the eastern district of michigan i don't think it happens routinely in the eastern district of michigan we typically only ask someone to take a polygraph if we're concerned that they're lying and here if you look at the report from the proffer you see that the first set of questions are on the murder we were very interested in this murder and if you compare the date of the proffer the date of the murder and the date of the jail call which actually came into the record at sentencing that jail call between adams and one of his associates talking about how tyrone conyers was still out there occurred seven days before tyrone conyers his murder so we were quite focused on that murder and there's testimony in the record judge griffin you may have asked about this it's a page one zero zero four it was at an evidentiary hearing where we called the case agent mccormick who testified that the d a s investigation had extended to the murder in that makes sense the key witness in the struggle just a geisha has been murdered that the investigation had extended to the murder and that's why they were asking adams these questions about that murder one other point i think judge griffin you asked about this as well whether or not there was controverted that he had failed the polygraph actually defense counsel admitted that he failed the polygraph it was a page nine nine seven and if you look at the district court's order the district court actually relied on that admission that the defendant filled the polygraph never actually claimed that he was testifying or not testifying but giving truthful responses during that polygraph or during the proffer he just said well you can't prove i was the murderer and that may be correct but that doesn't make those responses truthful i'm happy to answer any further questions on that or or any other issue i think we're good thank you  in five seventy one and it's even pointed out in the government's brief that the breach i mean it's contractual nature but that the breach itself must be material and substantial in our argument is that it was not material substantial as it related to mr an investigation into the narcotics crimes and that is why you're right about that they're investigating him for a narcotics crime if in fact as in the process of this they conclude that he's orchestrated the murder of this guy that would logically lead to federal charges with and yes in fact the federal charge for that is going to be the gu calculated based on actual murder so to say that that it's not material to the investigation i just don't fundamentally understand why it either you either have to convince us that the agreement only related to being truthful as to the drug dealing which is refuted by the plain language of the agreement or that for some other reason it doesn't matter so try try that one more time way because i don't get it yeah  just that because he hasn't been charged with any sort of involvement with the death of mr conyers so our argument is that his statements as it relates to the feeling of the polygraph exam that the agreement talks about investigation that charges right right and there's no question that he was being investigated for whatever role he played in the murder he knew that right so why doesn't the plain language of the agreement control i think it takes it too far honestly that's our argument is that it stretches the agreement too far to say that his failure of the polygraph examination was a substantial in material breach of the cast of our remit as it relates to the admission of that evidence at his trial for drug crimes in possession of firearms had he been on trial for the death of mr conyers that would have been complete that would have been a completely different analysis because that would have been a substantial material breach that agreement as a relates to what he's being tried for this in our opinion is a backdoor way to get evidence in against mr adams for something that he was not being tried for and that is a violation of mr adams due process  material is that how do we know what state it was was untruthful in the polygraph i mean isn't the polygraph just that is is testimony or statements were  on the polygraph is it specific as to statements or is it just that he's untruthful it said deception detected as to the two lines of questioning that he was asked about which ok which only related to the death of tyrone  didn't ask him anything about the drugs ok so you're saying i got to take anything else thank you thank you we know that you have been appointed here under the civil justice act and we want to thank you for your representation of mr adams and your service to the court