and we move to the third case this morning the united states  wasn't so good to give oral arguments we would have a pleasure today so with your indulgence i will take the issue just a little bit out of sequence i'd like to begin with third issue that we raised that's for three guard the grand jury transcripts because there was a motion that was filed to seek disclosure of the grand jury transcripts that issue was preserved unlike some of the issues where we have a plane air standard of review so with respect to the grand jury transcripts there was a motion motion was denied but there was no opportunity to deny them o before she undertakes a ruling so that is one aspect of the grand jury transcript issue here and we think that marty can obtain grand jury materials by showing that the regard to both parts your question your honor he would i think have made an effort to make that showing if you'd been given the chance to argue if he was make sure your problem yes or the gents act certainly you get those materials but i think the grand jury transcripts would be more widely available if our argument would be adopted here day it's not just for the parties or tend not to is not for to my hard to find of the grand jury transcripts will be available freely so grand jury transcripts are to be protected if there is a secrecy interest that the government can show that there's a bill in interest that you're aware of it so do investigations and so forth but i will take your honors point and move on to the next issue which is the the judge plainly erred by allowing agent steel to testify about ultimate issues in the case of course under the federal rules of evidence a an expert witness may not opine on ultimate issues and this witness agent steel did so twice this case was not it about to be controlled by my client  goes this case was about the two other charges about the gun being used in furtherance of an agent steele said absolutely that it was that's an ultimate issue that's improper to rule seventy four he also said about the drug quantity that the inten based on the amount and the paraphernalia was for distribution again seventy four b violation because that's an ultimate issue those are things that are only to be opined about excuse me never about that aspect though it's just testifying that his experience the air drug or people that have those amounts of drugs usually a distribution system i don't think is a that's why he's not talking about him directly in the sense of the fact they had that much many drugs but you are in the context he is based on the agent's experience testifying about specifically the quantity in this case and therefore about mr tingle so i don't think that you can separate the two things by saying experience surely these things would be suggestive of something without crossing that line in several for b and making a conclusion that is only supposed to be left to the jury with respect to it and say something like yeah something like can go intended to distribute the math what he said was it was definitely for distribution  honor but just in the explanation that you gave i think that it would be inseparable in the minds of the jurors to say that that information that was just provided by your honor which i think is faithful to the testimony by the agent doesn't show that it was for distribution because he said that it was definitely for distribution that nails down with the person's intent was to look at this is i don't ever recall us keeping out that information is you're asking for something new but i think it's consistent with the third circuit's decision and watson enough so far as that's a certain of that there that's absolutely right and so when bush would be i think our nearest case that's precedential on the subject and we've done far more drugs were definitely for just one location if you know we have guns and whether they were there in a closet where the end of the bed or the be on the nightstand those kind of things come in sure and you can testify about all those facts but you you don't need to then draw the conclusion for the jurors in fact you're not allowed to wonder will seven zero four be and this i think is a common practice by prosecutors because jurors are impressed with experts they want to then put expert testimony in they what qualified as an expert was and that's another problem in my opinion your honor but you don't need to do to dot all the i's and cross the t's when they are on the jurors part of the procedure and so present the facts but don't draw the conclusions for the jurors and that's what the problem that's what the prosecutor did through listening the testimony and that certainly the agent did through the testimony that he gave the next issue then would it's a puzzling one because as a gatekeeper you are the one who determines if somebody is an export expert or not an expert and yet the rule says the that you do that on the border you do to the government's going on to the questioning about in your expertise and in your experience in your training and back to you being an expert and so forth the person's never been declared an expert and then at the very end of things that makes a difference with the record shows but that's part of by them but then there are all held accountable and so here we've got a judge who has a rule that i think it's just not a good rule and it needs to be addressed and it's really the she's not the only one it turns out that  she's not not alone and so that does not make it a good rule it just means more people are following a bad and i just wonder i mean i know that i know that in one of the recent opinions judge posner t dissension he didn't seem to think too well of that will either we think less of it even less of it than he expressed in his dissent the rule is not a good rule it creates problems it shouldn't be in effect in the way that it is and i know that has its roots so i think it needs to be changed and it's additional problem that we have in this case and that goes beyond the gate keeping which we are asking for an aggressive interpretation of gatekeeping responsibilities are but i think they're rooted in the text and footnotes seven of the opinion of the first circuit's decision and hold as well as the fraiser opinion that we cited so the gate keeping responsibilities important one and make sure the proceedings are reliable district courts should make these determinations they're allowed to do so sue a sponsor we think they will actually requires that they do so even when not asked and that's part of course the authority that i just mentioned the fourth issue then would be the evidentiary hearing that we believe should have been vindictiveness it is a significant thing it does not change the outcome of the proceedings in the sense that the others would if we are correct on those and so i've tried to organize these  terms of where the importance of the issues leads us but it is an important it's your hell it's i'm having difficulty with that argument because when the government off negotiation strategy and didn't act out of spite or vengeance or that it harbored some sort of bad amiss toward mr tengo because he did not accept the  think i agree with everything you said with this kathy on the government's explanation of the facts in so far as what it did when it did it is the problem here because there was the lab report and it said that the lab report were containing new facts that change the charging decision and that explanation is irreconcilable with the record on this and if my client is given a hearing in the judge is satisfied with the explanation of the facts and the timing and so forth that's fine but there is that factual problem that creeps into the analysis and it does change things because then it shows that the government did have facts that it said that it didn't and it said that that lack of evidence was then the basis for the subsequent charging decision and that just can't be squared i think with the lab report on the timing of its receipt by the governor your argument would be that this occurred after the charge was made was w they had the lab report before the decision to charge and so on the explanation they gave to the district court this spring board has really said that any pre charging conduct can't be vindictive bending except i think in this case where we have facts that show that the government explained the district court that it was new facts that it didn't previously had that led to the charging decision and the record on the other hand shows they did have those facts and so the charging decision doesn't support the facts of the case would be my contention with that i reserve the balance of my time  she ation strategy here we gave mr tingle about six months to offer rate to accept the plea to the statutory minimum of ten years and then when he did not we extended that deadline two times and it and when it came when push came to shove we did exactly what we're going to say what we said we were going to do which as you alluded to is it is precisely what the supreme court has long said we're allowed to do as an attempt to persuade that's all that occurred here i'm really interested in how the u s attorney feels about this dauber business because i i i just don't understand how it's legitimate for judges to get around  requirements that are set forth in daubert by simply not declaring any witness to be an expert witness and then at the end of everything say you've heard from experts you jury figure out who these experts were you're i think at three responses that to that kind of to unpack that first of all this is not a way to get around or advocate obert not described which leads into my and beef up the credibility and weight of the testimony by asking questions that as savile ish her qualifications as a witness but then not have to go through the rigorous process of this is opposite and prevent that lifting up so what it does it avoids the jury hearing from the court giving that witness the end perimeter of the court as being an expert so this is advised in the twenty two thousand amendments to the rule well did by only by implication that the she let all the testimony come in but right i think that's fair i think if you look at what cotai are says is that there's no reason for a hearing if this is taken for granted the tenth circuit inquest are said there's no reason for sue a spontaneous on the record ruling that someone is an expert i would point the court here to not look if the purpose of her practice of not declaring this to be an expert is to prevent a jury from placing unfair way on such a witness's testimony didn't she disarray that purpose by telling the jury that they just heard testimony from experts it both ways used two things i would like to answer that kind of broadly and then bring it back to the specific case i think perhaps that there is some tension in those two things this is the southern district court good faith attempt to square a competing interest in not having the court say someone's an expert but then fortunately our court has to approve those rules but yes your honor i think if the court thinks that the southern district has assertion no oh i'm sorry if the court doesn't think the court has balanced that appropriately i think they would be open to hearing what i wanted to get back to you on this particular case is that  docket one type money i would point the court to docket one twenty where the court says specifically that she reviewed all the witnesses in the end the experts of the government had lists that she refers to document eighty eight which is docket eighty which is are our proposed expert witness list which gives not only the names of the qualifications and the content of the testimony that those experts would give so there's every indication that the judge did actually apply her doll for gatekeeping function she just didn't specifically call those witnesses experts in front of the jury which is that that's that's the way down or were we don't have judges in back rooms doing i don't know what i mean it's very unusual situation so i don't think so quite your honor because again cotai are recognized there's no reason for a hearing if no one objects to the experts qualifications and i guess i would cite the court to the tenth circuit which said there was no requirement for a sue a sponsor on the record finding if no one objected to it here mr tingle did not object to any of the witnesses and i think all of them are clearly within the orbit of rule of jabbered is legally wrong in this case to be qualified by his years of experience alone so there may be no overall harm here but the whole thing is very problematic i think i would to answer that i would go back and i would i would say that there is tension and not wanting the court and the court not wanting to say that someone is an expert in giving the instruction we're not here saying otherwise we're saying that that is the southern district of indiana's good faith effort to reconcile those two competing interests if this court doesn't think that is the best precise way so be it but then we would also say in this case there is no objection to the rule which has been long implemented and the southern district of indiana but cross multiple judges moreover as to the instruction mr tingle actually proposed that instruction so to whatever correct on agent steals the content of his testimony that mr tingle is asking for this court to make a ruling that and never has before this his testimony the content of his testimony is well within the strictures what this court has  permissible and the government avoided the perhaps two main pratfalls this court has warned against and because agents deal was in a dual role witness he only testified as an expert not a fact witness and we couched our questions in his training  experience and didn't leave the jury with the impression that he had special knowledge about mr tingles mental state and if there are no further questions the government would ask this court to affirm  explicit i thinks there's a four factor test it's well known you can't say that it was implicitly done on there it's required that it be explicitly done that's what satisfies dobber as footnote seven that i think does talk to judges about what they should do and doing it to a spontaneous i think is appropriate the standard review should be to know because this is a procedural issue and we've used procedural issues before to get  review that should be the case here and lastly again in response to judge kane his question into the government's point in so far as the seventh circuit is not smi be squarely addressed particular seventy four b issue watson has third circuit we think that it's very persuasive it's largely on all fours with the point that we've raised here on the seventy four b issue and it was plain error as it is here and they found that plane error even on that difficult standard of review the defendant was entitled to relieve we asked this court to follow