those errors add up cumulatively to prejudicial there unless the court wants to direct me to some other issue i think you have to st consider what was missing from the government's case here the evidence that exists in most drug cases didn't exist here you didn't even have an undercover drug with respect to mr reyes he didn't have an undercover drug transaction with some of getting drugs from him you know i'm finding drugs in his cars house you don't have wiretaps where he's talking about drugs the only direct evidence the government has was a codefendant who is subject to all the sorts of impeachment of cooperating codes and is subject to the other evidence all had some ambiguity you have these telephone contacts and told records with nothing known about what was said you have these meetings with nothing known about what it said and that left open the following defense argument which was at the very least a viable one a codefendant who is cooperating isn't trustworthy the other evidence of association contact isn't enough because st it's part of a broader more general association because evidence showed contacts on other days to nd we don't convict in this country upon guilt by association that's argument you make to the jury rd critical evidence of what was done or said in these telephone contacts and meetings is missing the end admissible evidence an impermissible argument filled the holes in the government's case or undercut the defense argument and at least three key ways st the hearsay testimony about other information the case agent had and what the other two coconspirators said filled the whole of all they got to cooperate in codependent st the coconspirator statements added statements made by coconspirators when they had mono motive to lie nd you had a well established confidential informant working for inadmissible evidence that paints mr reyes is acting like a drug dealer he gazed in counter surveillance like drug dealers do that's one of the in invisible pieces of evidence isn't most of what the agents testified about what they saw counter surveillance yes isn't it isn't it virtually all what they were seeing as opposed to a response that yes this is consistent with counter surveillance and there was never any objection to that well it's true there what they saw but there's always the argument that people think they see something that's not quite what they see but now we've labeled these agents as experts and counter surveillance and the danger is that they were actually ab all i think there's three ways that made it seem like expert testimony or the term counter surveillance then there's the you talked about the techniques the drug dealers used and then in one instance the question from the prosecutor was based on your training experience did you recognize to go back to your judgment i think the danger here is the jury's going to think because they're experts who know about counter surveillance unquote they're probably better and more expert in seeing seeing what people are doing and and so what they say they sign terms of driving up coal the sacks or the various things they said they saw that gets more credence because they're experts at this stuff so that's i think the danger here and that is one of the dangers that the dual testimony cases talk about the rd thing that the that drug dealers are like type evidence that came in of course is he threaten people like drug you lose to that came in through the coconspirator statements then drug dealers get painted as extra scary in the prosecutor's closing argument on the no no on the coconspirator statements was there are there are there are there were some hearsay objections was there any specific objection and that these are hearsay because they weren't in furtherance of the conspiracy did anyone make that specific objection which is what you're arguing on appeal no but i think  objecting is hearsay you don't have to say it's hearsay because it's not and further as i think objecting is hearsay is a sufficient objection you don't have to analyze every pronk of all the possible hearsay exceptions i think the lesson until the other side comes up and says well it's this exception or something like that so no your honor was the continuing objection on hearsay grounds but i think that's sufficient and of course so you have the argument about toxic drugs being poured into the community council i want to ask you i'm looking at a transcript where you have mr barros attorney questioning agent jewel and saying i want to ask you a few questions about methamphetamine and regarding why it is so dangerous and the agent says well number one every ingredient of methamphetamine is toxic to the human body so this came out in evidence through questions by defense counsel so how is a comment on that by the prosecutor  either prejudicial or not harmless i think is the combination of the three things quote toxic unquote drugs quote pouring into unquote quote the community end quote and is very similar to the fleming case that i said in my reply brief where there was poison coming into denver from some other city or something like that and the court had said that potentially could be prosecutorial misconduct but that  didn't have a defense counsel asking a question which alissa didn't answer that methamphetamine is toxic and no one moved to strike right correct but i think that wasn't in the context of an agent saying we have toxic drugs pouring into the community in the context of arguing the defendant should be convicted i think is different when you have that in closing argument being highlighted in that way with that change you also of course have the closing argument the last area here that i think  very damaging to the defense the whole point of the argument that was available to the defense here it depended on defense attorney persuasion this wasn't a case where there's a bunch of defense evidence that put the government evidence in doubt it was an argument about persuading the jury that this wasn't enough and when you then impugn defense counsel who's trying to be that persuade or that's especially damaging i c m down to thirty seconds unless the court has other questions i'll reserve that corrina i'd like to reserve one minute i raise two issues in my brief an incorporated others by reference i'd like to focus on the failure to conduct a jury inquiry after a safety concern was raised  this court decided in united states person a symbol that whenever a colorable issue of safety arises the court must conduct a jury inquiry in the colorable issue of safety that arises or is it jury tampering and contact you can be at any one of those three i think what happens in simba is a threatening minute scene of an eyeball lean towards from the defendant to a juror i think also in our cases that we have at both and the present case we have these jerk questionnaires that raise concerns that wait this information is being given out and do the defendants know about that in especially to the defendant's family that case involve a circumstance where the juror was actually excused and didn't participate in deliberations it did not your honor you have any case that stands for the proposition that the failure to conduct this inquiry is error in a circumstance where the note was from one juror who was later excuse simple up sent up yes in that case the juror was not excuse that excuse but it was talking about there was a fear of one juror but that the judge had an opportunity an obligation to ensure that the other jurors hadn't been communicated with the same safety concerns and all goes stems back to the violation of the constitutional right to a few a panel of jurors that are impartial and so because this happened the day after they were talking about how elaborate and sophisticated this drug operation was how confidential sources the names can't be given out because of the danger to them this jerk comes in the very next day and says what about my name what about my occupation where is my home address did do the defendant know this and so yes at that point symtab says you must conduct the jury  but not only to find out if she her safety concerns are you leaving but also to determine if she could be impartial and whether other jurors shared that information this jury instruction or this jury answer was given to the panel of juror the jury so they saw this question and answer and those same concerns could rise was interesting to me is that the answer itself here's a question of do they know my name occupation where i live and all that the address is no they don't know where you live but your name yes they do know that your occupation yes they do know that and there seize three people in the jury room that this juror was concerned about and may have communicated to others before she was dismissed so i think that raises and i think the blitz cases almost a mirror example of the problem we have with  crit questionnaires it can raise a question of concern of safety and the answer of modification of you don't have anything to worry about as a blitz court says that this never happens or the answer in this case the the attorneys have this information very briefly but they don't know your home and work address well if they know that your name is molly ringwald and they know what studio you work and that's not so hard to find that person you easily done on google or private investigator or anything so those are real concerns and i was as a matter in your view as a matter of law the judge's view that given what was in this note further questions could exacerbate the  problem and highlighted for the jury that that's just wrong as a matter of law and the judge had no discretion when asked the next day to conduct an inquiry to say no that's true yes yes your honor and also because that answers the question of the safety concern but it doesn't answer at all the question of continuing an impartiality and non biased so once it's raised it's up for the government to rebut the presumption of prejudice and without record of prejudice there's nothing left except for reversal it to find out the man to the trial court to find out if this can be communicated to other jurors and if they remained an impartial just like that the remedy and some top the narrow ruling required here is just that where the government has proposed a witness and fought very hard to have that witness included in the trial and where the government refers to that witness's testimony in its opening and w codefendant elicits testimony from an agent that's hearsay testimony and then the person doesn't testify the remedy has to be much stronger than a limited instruction that simply repeats all the bad testimony that all the bad unconfronted hearsay testimony that that was brought into the trial let me st address the government's contention that there was no confrontation cloth violation the government argues that c s three could have been called but there's no case that says that we're where the government has proposed a witness and referred to that testimony in opening and that when this is been cross examined by a codefendant that that your force that that situation forces the defendant to to call perhaps the most powerful i think in this case the most powerful witness against him or her there's no case law to suggest that you're invoking your confrontation clause right is dependent on your making this decision to call the witness that the government has chosen not that that is my yes i have and the government doesn't cite any such cases they instead i think rely on the forfeiture by wrongdoing of cases and that i don't think the political here there's was no showing in the district court that my client did anything wrong so i don't think you could argue that you know it was forfeiture by wrongdoing so you feel i am fruit and a limiting instruction is not  with my client so he is you know an unindicted coconspirator if the government's theory is that the is that this conspiracy spanned to eastern washington and included this guy i mean he testifies that he traveled with my client with pounds of methamphetamine i mean that's a you know a codefendant testify and i don't think that that's a that burton makes a big distinction between that situation and what we have here i think does talk about powerful incriminating evidence from basically a codefendant right and so you know i think that that is a playable here because of who c s three was three wasn't some random person he testifies that you know he he worked with with my client physically my client and you know the women instruction  is particularly problematic because we have a bunch of testimony from from these are i think state officers who did this initial deal and or were  district court had done what defense counsel suggested which is just write the entire test of exactly officers but but how how is that related to the violation i mean how are those why would striking the entire testimony including testimony that had nothing to do with c s three why would that help remedy the confrontation clause problem well i think it wouldn't in retrospect be that what i would have suggested that she do but at least there it's just out of your mind whereas what happens with the jury is that is that the jury is forced to hear the judge the most important person in the courtroom say well you know you are to disregard that you know mr sold drugs on december th two thousand and fifteen that he did it at this house that he did it with this person they're hearing again and again and again and then because it wasn't all struck because the defendant  the testimony wasn't all struck the government was able to say well remember that drug deal in december th team at closing so they thought it was substantive evidence they thought it was necessary talking about a closing argument no but they were detectives so ross was the detective and so when they said oh you know remember this deal i mean the basis of that deal was this unconfronted hearsay testimony that c s three had and so when they said remember the december two thousand and fifteen deal the january deals are different the january deals didn't involve my client but they specifically in closing said you know remember the december two thousand and fifteen deal that is the unconfronted hearsay testimony deal your time thank you morning your honour's may it please the court until miller on behalf of the united states i'm going to take the issues in the reverse order so i'll start with the confrontation clause issue the key to keep pointing with regard to that issue the st is that there was a limiting instruction here and it was a broad one  the court told the jury to disregard and give no weight to certain limited portions of the testimony and then it started specifically the court instructed to disregard detective rogers and agent wrote his testimony regarding what c s three told him during the course of their counsel you know the government gets to decide how it's going to put what order it's going to put its witnesses on so couldn't this whole problem have been avoided by the government deciding whether or not it was going to put on c s three  st before actually bringing out the testimonial hearsay and then making a decision now for whatever reasons we're not going to put the confidential informant on i mean wouldn't we have avoided any problem at all by just the government changing the witness order i've no i think so because there's also a strategic decision that comes in on one front counsel's part which is they cross examine these witnesses about c s three statements as marsa but i mean they reasonably assume that c s three was going to rojas was asked why did you look at the license plate number why did you look up who owned the car with this license plate number and he responded because the s c s three told me that that car was associated with the people who he dealt drugs with this was going to be their only chance to do this cross examination and that's not right either as as counsel for one of them actually conceded when there was an argument about the confrontation clause issue he could have recalled these agents to make his defense case and he says i made a strategic blunder in in cross examining he says while this is my fault i shouldn't have cross examined these witnesses i should have recalled them and of course that's right there so i don't know that it's but it's not right i mean they had no reason to believe when the agent was testifying that the confidential informant was not going to testify right well i think the bomb case stands for the proposition that just because a witness is on a witness list doesn't mean that that witness is going to be called to trial and it's incorrect to suggest that we told the jury we were going to call this witness what we said is you're going to hear evidence about this try this deal this december two thousand and fifteen deal that took place at the house we did not say we were going to call that witness in opening so he was on our witness list we did expect to call him the only if he only thing the record reflects is that we didn't because he received a threat and we made the decision that at that point it wasn't worth the risk to his safety to call him but that doesn't mean we in some at some some sense and trap the defense the defense made a strategic decision that turned out to have been a blunder they could have dealt with us in their defense case i also think it's wrong to suggest that  the nd key point about this evidence is and i think some of the back and forth about it gets to this evidence that this transaction happened that it was a controlled transaction that they spoke with c s three before and after and sort of they patted him down of that still comes and so there's still a transaction involving the arkham house that comes in the only thing that came out on direct again is the statement that why did you look at the license plate because they told me that was that was  or the key distinction here which is is is symtab and the sudden circus decision in blood and remo the supreme court decision on which they're there based are they about any kind of suggestion of bias or are they about a specific subcategory which jury tampering or contact with the jury and symtab says it's really about a rule a presumption that you have to inquire of the jury when there's improper contact with a juror or any form of juror tampering and then elaborates it says that includes indirect coercive context that could affect the peace of mind of the jury here we have no evidence of any contact that's specific to the jury even if you accept the defense's view of what happened in the district courts in france that there were three witnesses who caused people to one of them that's what the district courts the district court said is that that the district court believed this was why the juror something no that's right and the district court was i mean and we've suggested that the doesn't actually say that but even if you that that's the inference but that was a correct inference the district was also in the best position to exercise its discretion and figure out how worrisome were these three individuals how afraid does the jury seem the fact that the jury  the district court exercise that discretion correctly i think is played out in the fact that there was no follow up to the story no the the no further suggestion of concern on the part of the jury and that is a big contrast with blitz where you have the of the new year is eventually the jury is impaneled and dismissed because the court security officer tells the court all of the jurors are talking about the fact that they're afraid about their jury information and then they impanel another veneer and it happens again here we have one  asked a question and has as judge bennett noted in his question that are all similarly doesn't sit on the case and for those reasons i think we're really in the area of discretion and this is more like cases where a district court has disc to try and make an assessment based on what's available to it and given that the judge is the judge who drew the inference about bias he was also in a position to decide the best way to handle your position there's no evidence of contact or even in direct coercion with the jury yes yes and that's that's necessary to put you in the sort of subcategory of cases controlled by some top to get you in the rubber rule yes yes and just a final note on this issue as counsel notes that the appropriate remedy would be sending it back to the district court for calling all the jurors in an african them again we don't think that that remedy is appropriate here but it doesn't revolt result in a sort of outright reversal of the conviction and cases over counsel i'd like to i want to make sure you can do whatever you were you want but i want to hear your response to the argument about the testimony about all of this information that the f b i received from other sources about these defendants which you've argued in your brief somehow in your view isn't hearsay so as i understand it there's only one piece of testimony and that's agent wethers testimony and this is a the excerpts of record at page forty six through forty seven unless i'm misunderstanding your question he's asked at some point did you start working with the d bellingham in this case he says yes they say why we received information that bulges are various ways to see a was working with eric marquez and other individuals in the market i think that was the that was the statement that you've said was objected to but i think the defense raises three other pieces of information that arguably are viewed under the plane or standard but but the one you st identified is the one that they clearly objected to that's right they clearly object to that you've argued that isn't hearsay i've argued that that is per miscible as for the explaining the the the development of the investigation i  for the principle the reason for law enforcement focus on a diff and it is hearsay was this was whether is testimony about the reason for focus on this is this court's decisions and i think johnson actually fairly stands for this proposition two when and i think by contrast the decision so the th circuit decision that they rely on which says you can't get around crawford and it's clear you can't get around coffer by just sort of nar ting and what you do next in your investigation but that's not what happened here we have evidence that really is garcia and an individual who is caught with six pounds of methamphetamine in a trap in his car in eastern washington had forty two  because it shows that the defendant is more likely guilty than not i mean this is substantive evidence and the fact that it may also furnish background for the investigation i mean that would be the cart driving the worse here i mean this is just substantive information that's coming in through just nothing more than hearsay i think without it without a tie the jury would be left to wonder wait a minute we were talking about a seizure of six pounds of methamphetamine in eastern washington how do we get to western washington and so saying there are ties between these two individuals actually explains why the f b i started working with the da but even if you think i'm wrong and even if you think that this was hearsay that was let in in violation of cock  there was lots of evidence that this is harmless going to reasonable doubt because there was lots of evidence of contacts between reyes garcia and marcus that the jury heard that was not hearsay they were i can cite you six different there was testimony that was suspicious of the defendant for drug trafficking i think that's not part of the i think the objected to testimony is that we received information that he was working with eric marcus and other individuals why were they investigating marcus we had a confidential source who could purchase drugs from him and of course then that confidential source testified at trial about purchasing drugs from marcus so to the extent it was you know we were investigating him it was actually we were investigating marcus who was not one of the three defendants on trial as well that's right i my question was wrong ok thank you i can i can keep going through the evidence but ties marcuse and raise garcia and shows that this is h that the balancing that is required by the by the rule isn't necessary and that the court said well you know the government has told me that a limiting instruction is enough and i don't really have  and there's nothing in the record indicate the court did this balancing i mean the record seems to me indicate that the court assumed that what that there doesn't have to be undue prejudice analysis because even if there could be prejudice a limi instruction is always enough is my is my reading of the record wrong i think that if you're if you're just looking at the i think you're looking at when he ruled on the  serrano prior conduct and he says i think that the balancing that happens is in the discussion of why it's admissible why it's helpful and why it's not unduly old and i think that the critical issue there i agree but he could have given a fuller description of that balance i think he's also right that this court has repeatedly held the limiting instruction is a way to deal with any sense of how it is a potential way but it certainly doesn't obviate the need for the balance well i think that's what i think that's right but i think a court that says i know that the court is effectively saying i know the law and i have decided that the law that up that says that a limiting instruction is good enough applies here is effectively what he's saying this is an experience district court judge and he's gone through at some length with the parties why it gets in under four or four b and i think events saying i'm a law says when a limiting struction will help counter any potential prejudice i should give one and i will hear he's saying i mean he could have again he could have said it more fully but this isn't a basis to reverse this conviction  because the court wasn't well aware of the law that approves those instructions when it when it made that statement and of course he was correct that the evidence should come in because two of the charges against a particular defendant corrino were that he possessed drugs with intent to distribute and both of them resulted from incidents in which his house was searched pursuant to a search warrant he was found to have drugs and he was charged with intent to distribute so the government had the burden of showing that he intended to distribute and evidence that he had distributed previous previously was was relevant to that those contacts were about and arguing doubt to the jury and then you have here an f b i agent saying we received information that he was working with mr marquez and his family that is far more damning th just the contacts and it's interesting one of the points in the bynum in case that i mentioned my supplemental authority letter says sometimes brevity is worse and here's an example received information that was like the f b i for some jurors god's word that they knew them are my client was working with mark katz so that is extremely damaging evidence and it made more damaging by its brevity i think i'm over my time unless the court has question is very quickly i'll just point out that this entire remedy was to return to the district court so they could find out if the jury was in bias and i think what we have here is a case where the threat was real to juror number three and it could have been expressed to other jurors and once that happens you must have to earn an inquiry to find out if this jury can continue to be impartial concerning the i do have a quick question i apologize there there are a lot of uncomfortable facets of jury service when do we draw the line for the presumption of prejudice to attach if we don't drive at tampering or contact or indirect contact where do we draw that line is it's the perception of the jerk that's what you're looking at she perceived a threat she saw the three individuals and certainly the court recognize that said i know what the threat was to her it it was a threat me he didn't say it was a threat to me but he was a psych i was alarmed or something to that can so that was sufficient to understand that that juror felt threatened by this information being given out especially after all that happened in the previous day thank you and then for the four of three balance you know there was never a record made of it but you know here's a case where they're talking about bringing in four dollars to five dollars more prior bad acts and all that cumulative evidence if there was a balancing test saying well maybe one would be allowed but not all five this was supposed to be a case of find someone guilty based on the evidence presented against him here not on his prior bad acts and the support as any further questions