trial is that it was an improper application of the rule to the statements made in other words objects and was and then all those statements made were viewed by court none of them were made as statements that could be considered in furtherance of the conspiracy rather each of the statements considered by the judge as we detail in our brief were them none of the statements made were statements describing something having to do with affecting the cop's conspiracy see itself or why the particular action described in these out of court disjunctive first they would have to establish that in some fashion the statements made were in connection with some activity that mr give you know chavez was associated which we don't believe their statements show but also d that in some fashion even if they were to establish that the activity described or the connection described had something to do with an ongoing conspiracy at the time and it is our belief in reviewing the evidence that none of the witnesses out of court testimony about got a court appearance satisfied either one of those criteria as an answer your the court to determine whether or not she was going to allow it to be considered by the fact finder in their deliberations i'll give you an example for instance the st person she has that are of the testimony of a gentleman named  vero is talking about a conversation about events that had a long since past that weren't activities and mr to vera was engagement with a particular individual party relayed in the story and involvement with and drug transactions as opposed to with with one francisco trevino chavez my client with whom they had not had any direct involvement let's take somebody like mr margret requests in all this this is a different type of witness here arias claims that in dallas he had a conversation with mister to vino about a drug transaction over then the court review statements  in which afterwards mr rodriguez testified about rumors he heard about mr divino and transactions that had nothing to do with his own business with mr with m that's our issue with this case and i don't know how do you any more simply to put your honour's is that mclean i mean so you do have a difficult case for oral argument in that you have quite a few statements there were introduced subject to the general argument that you're making you would need to show a substantial number of them it seems to me were improperly introduced based on the rule of rationing else and that there was not sufficient additional evidence or so distorted the evidence  of evidence on the thought of the rest or the rest was insufficient regard as that conviction has to be reversed and that's you know you may be right it's not hard to deal with an oral argument because there's too much so and what would you say your big picture and so what do we really need to focus on from your viewpoint as we've big into this and decide what to do that you can you do can most helpfully tell us an oral argument as opposed to go and i mean my suggestion as opposed to going over each criminal defense work isn't it is that to establish a negative particularly in a drug conspiracy case where you'll have a crate of snitches come in and say and this guy was also involved in our activity that's fine but and in each of these cases if they were they'd use statements of his saying give a cash so that b can give you cocaine but that's not what we have here and each of these statements we have these witnesses claiming to hear someone else say that mr chavez was present at a certain transaction or head and somehow been involved in the processing of a transaction so we are once again we are one step removed from what one would normally think of further instead of conspiracy instead we're talking about statements in each of these cases in which the witness testifying is talking about a statement of a person out of court that the defendant cannot confront who is relating what he is to he himself was told by another so that's a difficult the strip away the state and i will acknowledge that there is from one witness and one i just addressing before you had to question your honor market regus of a discussion of a drug transaction absent that apps and then looking through the several days or of transcripts there is not any one identified mr divino in any of the activity of the alleged drug conspiracy and there any other at questions i can answer that matter before before i get to the final point in mining my argument oh you're still running good on you thank you thank your honor so what we're asking for the court to do is to look at those statements and st of all examine whether or not the trial judge correctly admitted those statements to which the defense attorney preserved objections  under the hearsay rule and the coconspirator statement and then if you concur with us that those statements were wrong as the admitted because they cannot properly even under the analysis there is not this was entirely to put in the cocoa room or based upon rumor and evidence and that is why we ask you to for mr vino chavez a new trial in which the government would at least be force to actually connect mr if you know chavez to criminal conduct if not by direct observation at least by persons who can say we actually heard him and discuss with him the furtherance of the conspiracy i mean oh let me ask an overarching question what is your understanding of the government's position at trial these of the whether the state has said i'm generalizing or non hearsay non hearsay therefore there admissible as opposed to we concede there hearsay but they come in under eight  two in other words at trial what's your understanding the government's position that they were non hearsay to where we don't even get to an exception to the rule but non hearsay as the rules allow or  twenty three statements but that's just common overarching what's what's your your view understanding understanding what the government is asking the court to find is that content paraded to equals furtherance by that i mean because the claim of the government is that this snitches testimony during trial was about statements made by an out of court declared or heard by an out of court and in the words further it's our argument is that guts the meaning of the word further it's certainly it has to be some all tied into actual conduct of the conspiracy selves and that none of these statements are these statements are more like got if you believe the stems are actually made and again of course that's a different issue but if you believe his statements are actually made then they are nothing but gossip and then these statements were affecting the business of this alleged conspiracy and none of them cause a transaction to be made further for the bruises down the road for the alleged conspiracy all of them were simply saying hey i have seen one francisco trevino at this time and place i know that he is now  taking over his uncle's business without any description to show that mr trevino chavez if you statements are believed was actually conducting drug  transactions so that's so as i understand from the government they believe that it is satisfied simply if they show that the statement made by the out of court declared or the person the out of court  want to begin st of all by addressing the court's concern to answer that to so that i don't forget to address that issue on whether or not it's hearsay versus just an exception to the hearsay terms of the challenges are all of those issues are very thoroughly addressed in my brief so what i would like to address here is the harmless error analysis and one thing that i need to address head on is mr mclean's contention that there's no evidence other than those statements and that is simply not an accurate assessment of the evidence so one of the if i may go through there it specific eyewitness testimony with respect to mr mr to be india i read this testimony involving his involvement in cocaine trafficking and he did a radio with him and he placed mr rodriguez on the radio or on the radio with mr with omar and it was during back whole conversation and that was part of the people that were making deliveries so this direct that's not hearsay evidence that is i have witness testimony that the defendant delivered back ok on the st and the st delivery then after that radio when a load of cocaine was coming or when they were picking up money he testified that he received typically two hundred and fifty two thousand three hundred kilos of cocaine per load and he said that he received now there's also a lot of other evidence about palin's direct involvement i wouldn't testimony about his trafficking of marijuana now what mr mclean would like the court to do is to a limit mate and not discuss any of the testimony other than cocaine but this is a conspiracy this pertains to the set of those that have did not just an agent cocaine trafficking they they engaged in marijuana trafficking firearms trafficking so to limit the testimony to cocaine is not an accurate assessment of the evidence so you have to consider other  two tons of marijuana that deal actually went through the th sold appellant a ton and a half of marijuana for seventy five thousand dollars now another witness hundred he was the owner of a stash house in the radio texas and he did not specifically identify the defendant although it was questionable from i think there's a question there about whether he could or couldn't there just didn't want to and distribute marijuana so and the stash ass's stored marijuana at different stages of receipt preparation distribution and that testimony ties in with the testimony of and there was testimony that it's important when money is seized that the transporter can actually prove that it was seized and that he didn't just steal it because bad things would happen to him if that happened so you know since he was fifteen or sixteen years old he lived in the same neighborhood and he identified him as being young he started marijuana trafficking with a pallet early on then he moved on with someone else but then he said at one point the appellant called him to ask him to help the appellant's cousin to transport a load of marijuana so this is not somebody that doesn't know who's who's talking to this is a man who's know the defendants and he's sitting or sixteen years old and has a direct conversation with this defendant about helping him transport money i mean transport a lot of marijuana for that what the president ultimately that lawyer was was do ramos let me ask you go into individual witnesses i think under the premise that regardless of what we do with the hearsay argument is based care prejudice will be that if we look at you breach carefully enough i think in this case or your honor there is no i mean most of the statements that are it's your i guess or i think there was some question about you know who is the leadership role or the organization hierarchy and i think there is the civic faces from this corps which talk about co conspirators discussing who is in the conspiracy or their roles in the conspiracy and i believe i have cited those cases in my brief and this court has found that type of testimony or that type of statement to be in furtherance of a conspiracy and i think couple of the witnesses even testif a consequence for not obeying orders in a cartel so anytime you have that type of scenario you're going to have people who absolutely need to know who is in charge here who is the boss who what their goals and i think some a significant amount of the testimony that's money that would challenge i guess has to do with that type of information but even if you look at it that that the the courts or jail findings there's a lot of testimony in there that doesn't even have to do would be a balance so mr mclean statement that the statement itself in order to be admis begging off of this judge southwick said going through every statement but i want to ask you this question is just sort of less to plead to make sure i understand the government's position on just what you said starting out the basic position in this  non hearsay but even otherwise harm is there or get you where you need to be is a statement by mcg louis miguel carry on for example and that's a statement relative to something that an uncle say statement about the whole wanting to leave or maybe thinking that they shouldn't stay there if i'm kinda crazy isolating back record but to get to the rear is the question that you're asking the fact that a statement is an out of court statement by the current the fact that someone else made a statement that the the witnesses testifying about that doesn't when it has to do with a coconspirator statement which meets the requirements then under the rule it is not you're saying it is admissible as not hearsay under that rule so i guess my question in maybe  louis miguel carry on a question is and did your uncle convey to you that he was worried about you knowing these people or being around him answer was yes the government's position is that kerry on and so i simply isolated that slice or to get a sense of the hard not to stand your general kind of overarching but you don't come we'll have to have to parse every statement to figure out which and so that's why i ask about the trial setting cousin several of these debris doesn't specifically deal with an individual statement and so one would have to assume you're relying on the position taken you meaning the government i don't mean you were the lawyer but the position taken in the brief before judge moses that that's the position whether right or wrong that you're relying on now is that a fair way to say i'm not saying as bad i'm just trying to understand it because it's a lot of said that and it came from the uncle that it is not hearsay under the rule because it was incurred and the conspiracy and our argument for why it's and bergen says the conspiracy is because that statement was made when they're actually delivering loads of cocaine after ranch when the statement was made so the statement clearly was made during conspiracy and what the argument then would be why is it any further than s in that they are responses basically because the fact that he didn't want them to get any i believe there's testimony that carry on said he didn't want us to get more involved and we were and i think when you're dealing with a cartel situation it is a benefit to the car kill that people not know enough to not know too much and when the the owners always saying something that basically and look at all the statements look at the trial judge's ruling and as i say it is i looked at the brief and somebodies i didn't see what the government specifically addressed all the statements but you know i can infer rests on the position taken before judge mo and in some cases you know she let a mean in general that they were not hearsay and that's what was bearing down on that they weren't hearsay so trying to understand the government's position not sand a judge of rome but if they aren't again additional questions of of the government while we have were there are right all right ms meg going you want to smile and when i went to ask her questions like i was opening up some past year for you i don't know i would mind  in the short amount time so i will try to draw address the course question from both judge yourself judge stuart aren't so yes that is it that exactly another way of putting the issue we brought before the court is that in these in these statements that these witnesses are quoting from out of court to clarence wrap and in their heart of the statements themselves is someone else a statement that ought to also be examined for whether or not it's hearsay and if so whether or not it comes in under some i believe a that you have a question is similar to what i think it's obvious government i mean dad being true but this know the cases in our circuit seem to support you know what's there so turn turning it to you what is your best case that if your argument is hearsay within hearsay what's your best case that we need to be looking at that on peel's on you know on the state ms or is was asked early even assuming two of the statements a story you're right on how do you get out from under the question just something is a mountain of stuff the government says she's got i witness testimony about your client so what do you do with dead yes i see two parts of that so the st part there of your question your honor touched on what joe southwick asked about is there a case on point for the hearsay within the accord and not hearsay conspirator statement and i will concur with the government that i cannot cite for you exact case because i think that the judge would have properly and should have properly parsed out those two and her decision which he did not and so i don't see that would normally have been an analysis of been done so perhaps that's not why it's been squarely present in the circuit only appeal you on appeal you want to throw but turned this conviction based on all this evidence you know dollars in your court not a bus to go dig in but if you got a silver bullet case that say is in the branch of a conspiracy does big with this many players what all this conspiracy case you have you got to put your finger out and say this is the case we need to be looking at as opposed to us scouring the western border looking for cases say they don't want fashion more than simply contemporaneously with the time frame of the alleged conspiracy but actually has something to do with the conspirators doing their alleged illegal business and then none of these cases do those statements qualify and therefore the government's case was built upon the rumors that the testifying witnesses heard about mr divino and essence the question is is one francisco to  negotiating or working on a drug deal and that's what that is our argument and so we do take exception with the argument of the government in that fashion and that you cannot tie him to any other transactions it is simply the implication by rumors from those who are the testify witnesses claim they had a conversation with that summarises are all right well this was a six day jury trial the government put in twenty three witnesses so you know we got a lot in his record we'll work our way through it but we appreciate your argument and that of misrata by helping us to how i what we need to look most closely at but you know full jury