speak about all of them i wanted to focus on a few issues and first i wanted to say something about the sufficiency of the evidence issue and in particular what i wanted to focus on is why we think this case is really be coming from another place from the banks themselves in fact i mean what are the card wouldn't be sent to the mail room but it would go to the applicant presumably that the applicant or and you know there were obviously there would be complaints but everybody there view the evidence in the totality and then with the presumption since the jury convicted in the light most favorable to the government yes but it but i think that the point is that cases like price i mean price that the wife actually  again i would agree with you in isolation but don't we have to look at the totality of all the pieces of evidence and then of course to ask whether or not that is sufficient and what i'm saying to you is that under the line of cases starting with precedent and i which i think is the heart of the problem there and fairness in this case is the way that judge real i handle this trial and obviously when there are allegations as serious as the ones in this case where it is generally morning he says you know i asked that question yesterday i'm really sorry for that so basically we're saying the next morning was you know i told you the best for him he was lying yesterday through my questioning well pointed at one point in the trial did this occur how many days into completely improper question that basically goes to the very credibility of her testimony i think that if the judge asked that question on something that's tangential you know and then another context and i was saying that merely by asking that question per se i'm saying in the context of this of the importance of this question and the way that it was done and her testimony and the closeness of the evidence i think it would satisfy any standard of reversible error that the court questions about you know did you write did you register the nine thousand dollars with coming into that he knows that's that's completely absurd question everybody knows that it's ten thousand dollars now it's true that the witness of course that but how does the jury know that that's not i mean he's communicating to the jury that there's something wrong with the way this happened because what he's communicating is that it's a lie that's what he's trying to get the jury to believe anything and he uses that advocates technique ask an improper question to which you know he would never allow anybody ask for d s that and then at the end of it he asked about it he asked about whether this call he knows the name of the company that her daughter works now that's a fair question but it at the at the end of this is you do not know now the name of the company that she was working in two thousand is that what you're trying to tell us so he ends his examination as he began it with showing this thing for the a witness that was very important to the defense case and so he was behaving as an advocate not as a as a neutral person when a state can't ask questions but i think when the questions make you an advocate that's where you cross the line and up against the clearly erroneous issue and the government is saying you can't change just reels decision that that was never said and therefore there was no gravity violation and i would just suggest to the court that that i think the court can find that that's a clearly erroneous finding and the reason i would say that is that this is a an interview that takes place approximately a month before this trial because remember this entered into it alleged post game or this answer entered into a cooperation if you look at this evidence i think it's just another example of judge still doing whatever he needed to do in this country let me direct your attention to rule six fourteen b of the federal rules of evidence which says the court me interrogate ask questions by what standard of review do we apply under that rule the determination of whether or not the judge's interrogation as the move permits has gone too far  to when the only lord testified that was on day three of the trial you can find that e g you are one chan it was april seventeenth the question at the end of the day occurred on april twenty one and a curative instruction occurred on the next morning april twenty script with one of the telemarketers that was to bite you she retrieved an open the mail with customer complaints the testimony the trial was that there were some hundreds of complaints from the better business bureau that came into the mail room during the time where defendant so i guess the question is do you really go strictly on the inferences in favor of the jury who were allowed to look at for example on the money and suspect that counsel argued yes there her mother came in and variety of factors that go to whether someone is in a management position whether they're a partner or an investor in the business which makes them more likely to be aware of the nature of the operation i was timid that it probably is a lesser factor than perhaps some of the others like the two thousand and three this was trial preparation and those notes were produced because there was no new information provided that meeting essentially johnson robbia reiterated what he had said during his previous three interviews those memorandum of interview were turned over he is no reported case from any circuit that i'm aware of that holds that that is the standard in fact this case can be distinguished from each of the cases in which the court found that it wasn't that it was reversible error and in fact there are several instruction immediately the next morning the very first thing which is immediately after the question has been asked in temp contemporaneously i realize it's the next morning the court says i apologize it was improper for me to ask that question that basically conveys the impression that he thinks she's lying that's pretty powerful as well i think that you have to look at the nature of the question again the jury has already the question is that you can't ask one witness to comment and it's my understanding from gaston and holmes and sanchez limas you can't ask one witness to comment about the credibility of another with one because that is for the sole province jury the jury is the one who determines whether someone is lying or not lying and it's improper for one witness to be asked whether or not another witness is lying essentially it's a fine line you can ask do you dispute what this person said but that's as far as you can go you can't then ask you say that they are lying because then you're asking this witness to comment on the credibility of another witness and that's improper but that's really as i understand it as far as it goes that the question is  the defendant making a credibility call about another witness and he should have been doing that but in comparing again columns to the current case i think you have to also keep in mind that in chrome's the prosecutor not only was there no curative instruction but the prosecutor revived the air in closing argument and balanced for the credibility of the agent and in other words the court found that that enhanced the area made a more significant in the minds of the jury that distinguishes the pres credible or whether or not a witness was lying and i think that's important distinction and i'd also like to book the sullivan and boyd case where the court found especially for what i'm suggesting which is that yes it is wrong to ask that question but the jury witness of a dozen employee witnesses and the defendant's own testimony i would like to move on to the other allegation with respect to for example questioning defendant's mother and the record shows that there were total of twelve questions asked to defend its mother and is this core pointed out federal of evidence six fourteen to the to the simply allows the court to ask questions of witnesses the questions were  relatively confined open ended questions fit given the standard plain error that apply here would not justify reversing a jury verdict after two weeks of testimony from numerous witness about whether or not defendant was involved in a project enterprise with respect to the comment about barry cohen's availability to testify which occurred in the closing argument of co defendants counsel remember this isn't the closing argument of defense counsel it's in sentencing for example is if a person is a witness whose cooperate he is going to testify on behalf of the government then that person should get the benefit of ecco operation in the form of a five k one by one recommendation and so it's very common we're required testify at trial or any other cooperating witness is required to testify trial that person is generally entitled to more in terms of the five k one point one recommendation from the government than if they don't testify at trial and that's the reason and i believe it's an innocuous one  i think because remember that i went back and looked at the record there were exactly two questions that the court asked to defendants and i call he over the course of the direct and across the salmon nation two questions the first one occurs on and that occurs if e r to fourteen to fifteen so when the court apologizes and says that question i asked was improper and i apologize to you there can be no rational at the very end of the day there's no useful questions after that the very next morning and it's significant for judge real to get up to the jury and say i apologize for what i've done the question i asked was improper it is only for you and only you was that was the freezing of what judge real said the subject of any on the record colloquy outside the presence of the jury after the jury was removed from the court room that relieved the bench he was gone for the day the next morning before the jury came and the court submitted that the government some of the spaces to the court that was in the house leave the next morning outside the presence of the jury where it was discussed if it was a question it's improper and then judgments federal law the court may comment upon the evidence he could if he wanted to in charging the jury actually made observations as to what evidence they should consider and what evidence they should discount