the mistrial issue as all refer to it here and the way i see that issue for this court to decide is this does a district court's pretrial order mean anything does it matter does it have value does it have to be followed because in this case on this issue we had a pretrial order that said do not bring in the evidence of a threat regarding sh and that evidence was brought in by the united states turning the assistant united states attorney during the trial there was objection there was a second objection and it was brought in anyway the government's address this issue in so there was argument by counsel prior to that and the government made the argument there attempted to make the argument there that this is somehow related to cross examination regarding that witness remembering things on that day or during testimony that he had said before the transcript clearly belies that explanation and it's not what happened the transcript is clear and a couple of points that i'd instruction is adequate and solves the problem and therefore a mistrial was not necessary however i would direct the court where it has the opportunity to look at the government's excerpts of record at page one forty two where the government made the exact opposite argument at the trial court at the time that we were discussing this in chambers after the misconduct when they sat in the event that the court feels that it ought to be excluded i believe it cannot be struck and stricken and excluded without further presence of the defendant or need for a mistrial so they're arguing the exact opposite to you that they argued to the district court in which they said in essence if you give a cur point a second point i'd like to make on this briefly is again if the court has an opportunity later to consult the defendants exits at pages seven and eight at the end of the bottom of page seven and on to the top of page eight that's the document which was the government's response to the defendant's motion eliminate regarding this precise issue the evidence of the shotgun and that portion of their br is the positions that they take in their brief what they said there is that the reason this is necessary and the reason the jury should hear it is because this was  explain leeward draper's that's the witness response following the salt in the subsequent involvement in the case and it goes on and what it's saying is that that evidence will tell the jury that he sensually these guys a bag guys and they tried to intimidate  and that's exactly what happened and that goes to the issue of why they did what they did in the first place that i want to see i think there's no question of course that it was aired of marina's out and i guess one of the character is not necessarily credible based on the whole body of his testimony which is all over the map on everything the second thing about that is that even if it was made by the other guy the government's whole changed was that all of these fellows were acting together that dereliction the one who is alleged to have made this statement was acting with my client the others they were all involved in the incident and they all left together and that the threat covered them all  witness ok because he's the only one that really saw anything the victim himself knows virtually nothing about what happened other people were in their houses and came out after it was over draper is the key witness and that's where this happened and this is one that they were supposedly threatening i like to move on to a different issue and that is that i've raised the issue of recording of  statements or the refusal to do so by the f b i as a matter of policy and i think this is an incredibly important issue and i believe that that the circumstances of this case demonstrate how the policy of the department of justice or the f b i not through record statements can be exact and in this case as we've pointed out in our excerpts of record and again when the court has time i i think it's important to read through the defendant's excerpts of record our parents from seventy nine through about  page eighty two but in those pages and particularly at page eighty two the government takes full advantage of their refuel to record these statements by  precisely what was said why the agents refused to clarify or anything because they they chose not to as a matter of policy to record the statements and as i've indicated both my brief and in my  reply in today's age in two thousand and five we can't be sitting on something in one thousand seventy seven that says well it's not necessary the supreme court has listed a number of different cases  says this day and age it's absolutely dick ulysses to be fusing refusing to record statements with the supreme court because it sounds district court approved it and gave that and then the the public court said no you shouldn't have the flight instruction here the bottom line on that to look at is that the theory of the government is that  he and it shows consciousness of guilt that he left the scene and went home and went to bed within seven knots straight home no that's correct but there was about two hours where they kicked around i think was the phrase they use in a culvert and i would have to say in a court on the reservation you know just hanging around is not uncommon but beyond that it was testimony t as they were afraid of the use of urine or well that's true but they were also there to buy drugs they were there there was supposedly some threat about a shotgun there was a number of other things and also that may be true as far as what darryl's and thought because of his conduct that might be true but some of the others will murder others thought because of their conduct but that's not necessarily that the defendant thought i had committed a crime i have no legal defense and therefore i'm going to flee because if so then you have to assume that the only thing he thought is that well the statue of limitations is two hours too if i hang out in a culvert for two hours i'm clear and that's not what happened he went home and those cases say that it needs to be an unbroken chain i want i don't know right now that my experience which i've been around for a while people who get generally get picked up within the same county where they  i don't know well what i'm looking at is that the cases of talk about the flight instruction don't come anywhere near this and if you look at this case if the flight instruction is ok in this case there would be no criminal case virtually no criminal case in which your flight  structure wouldn't be good unless the defendant robs the bank and sits down on the curb and waits for the police to show up it would be like under these facts under this scenario and that's just not i don't believe that's the case law i don't believe that's the unbroken chain that has four parts to it well ok that means he knows he's guilty of exactly what he's charged with here and that's the danger of it and why should be used sparingly conviction was overwhelming the jury's verdict in the case of quitting and of assault with a deadly weapon is strong evidence that the verdict wasn't prejudiced by any prosecutorial misconduct in the context of the whole trial the misconduct in this case was isolated and it was not inflammatory one question one response second by the court and the jury was instructed to disregard it in the absence of any evidence to the contrary we can presume that the jury follow the instruction and didn't a striking statements and a string curative instruction this was not abuse of discretion in the context of the whole trial and in the absence of evidence to the contrary we can presume that the jury felt that instruction the independent evidence of guilt at th defendant by daniel draper we were draper it was not central to the case what he did help to explain which was corroborated by the defendant's own testimony was that these four men were angry because they went there to buy marijuana and they couldn't and when the victim came outside not in any involvement with that botched marijuana transaction they preyed upon him and beat him up out of anger against lee were draper windows had broken rocks had been thrown the mood of that night with set through the eye witnesses and the word rape or merely corroborated with other witnesses testified to the witness himself could not say who hit him but what he did remember was that he saw the defendant and he was blindsided and struck on the right side of the head the defendant testified yes i hit this person on the right side of the head self defense notwithstanding dr nathan every was a trial witness and he said that there was a skull fracture on the right side of the victim's head the defendant by his admission struck the little guy a time he didn't call him by name and knew that when he left that place the little guy was on the ground so dearly injured there were two post arrest statements that were testified to by agent robel and by investigator charlie in this case in both of those statements the defendant admitted to hitting the victim in this case contrary to the defendant's assertion the prosecutors and proper question was made in good faith and was not willful it is not the government's position that that scrutinized the minute entry that set forth the court's order that required leave the court to ask that question the prosecutor's good faith mistaken belief on the basis of the court's ruling in chambers which unfortunately is on transcribed like with w that she did not have to leave off the court it was her belief then that the defendant had made that statement relevant through no less than four or five questions suggesting that that witness  no specific statements from the night of the assault until he apparently made them at trial and that was simply not the case the prosecutor is not excusing her misconduct in this case the government is not saying that it was finding the prosecutor statements when you look at the record show that she apparently was operating under the belief that it was appropriate to ask that question given the defense counsel's questions on  the court in this case reviewed the record heard arguments now with the court reporter and decided that on balance the curative instruction and striking the response was appropriate the defendant's argument that it was misconduct elicit any responses in relation to threats generally it's utterly without support on this record and you are ninety three the court's record indicates that the court granted the motion in limine e with respect to the reference to shock and period so to elicit from this witness  concern of threats generally was not in violation of the court's order and that simply is not supported by the record the test in the case however is not whether the prosecutor willfully clouded the court's order the government strongly urges this court to review the record i'm balanced it's simply cannot be again i would urge the court to look at the split verdict in this case this was the functioning jury they weighed the evidence and decided that the defendant was guilty of one charge and acquitted on the other they were not inflamed the verdict does not suggest that they were out to punish the defendant due to one answer to one question that was asked on the second day of the trial that spanned four days the defendant cannot rebut the presumption that the jurors acted appropriately and disregarded that statement with respect to the flight instruction in this case it was wholly appropriate what the dixon and silverman came to emphasize is that the flight has to be immediate and in this case it's not contested that it wasn't defendant knew that the police were looking at them and to emphasize the facts again the defendant and others fled from the three i would just have them running are yelling fled from the scene and didn't go home didn't get into bed they went and sat in what sounds to be a ditch under a bridge for several hours with full knowledge according to the codefendant that the police were looking for them in addition the defendant in this case by his own testimony knew that when evidence as consciousness of guilt in this case there was direct evidence of consciousness this wasn't a case where the permissible inference would have existed without direct evidence from the defendant's own testimony and the codefendant testimony about what the defendant and the others say i once knew when they left that scene and hit i'm sorry the defendant said that he did not want to be there when the police came he denied running although that was clearly contradicted by all of the other witnesses but he said he walked away from the scene his timing was clearly contradicted by the other witnesses he put it at about an hour he was arrested at six am and the police testimony was clearly that they were patrolling the area looking for the defendant went to his home  went to other relatives it's clear that he was not in his home in his bed until sometime that morning the defendant said that he knew again if the victim was on the ground and severely injured when he left and that he did not want to be there when the police came so that there was evidence in the form of the codefendant and the defendant's own testimony about actual consciousness that something had happened whether or not there was a self defense not direct the jury to find anything and again by their verdict we can tell that they went through the evidence and convicted on one count and acquitted on the other and i just asked for questions on the case because i just destruction of evidence the f b i agent testified that it was f b i policy not to record the criminal investigator did not phrase it as a policy but it was more of a custom and practice not to record statements the record has for every police judge said i don't think carries the day the two charges were with a dangerous weapon a deadly weapon and that was alleged to be a pipe the other charge was assault resulting in serious bodily injury  which is the count of conviction the jury had to quit on the pipe because there was no evidence of it nobody saw anybody get hit with anything there's no evidence of anybody being hit with the i think the police never look for anything no pipe was ever found no evidence of it whatsoever except that it may have been carried someone was playing with it on the way they're walking over there and tossed someplace in the woods on their way so and here we're introducing a completely different element a shotgun into the situation this is gesturing that well the court's order didn't preclude generalized threat discussion is silly because the only threat that was made was a threat back up and stuff and then a couple questions later did he use the word backup or a different word and that's when the answer comes he used a different word question what word did he use he said i have a sho un for you the prosecutor knew what was coming she knew what the court order was we've had i guess some testimony if you will to day as the what she was thinking at the time the evidence and support the claim that that was because i asked questions about what this guy was testifying to and never having talked about specific words before again if you look at the transcript that is what happened and second there were only two statements that he testified to that he hadn't talked about before and i limited my cross examination of those two statements and those can be found on page one thirteen of the government's excerpts and that was when the guy suddenly testified at trial that he knew there was a fight going on because he heard people like twenty seven a and following with respect to a statement that the government brought in about him saying the asking the little guy who was talking asked and what that statement about is showing that  the incident that occurred with the victim who got beat up in the fight had nothing to do with the purchase of drugs they were completely separate incidents relating to other matters where some of these guys went to school together the presumption that because the jury split their verdict means they didn't want to punish this defendant again as i mentioned before this doesn't fit because we're talking about a completely different weapon we're talking about a completely different on purpose for that weapon and it's just as easy to say that the jury went back and said well we can't convict them because of the pike because there's no evidence of that but we can't let him go because he's a danger to the community the shotgun is out there talking about shooting people so we've got to convict him of something so we result in you know they don't they're probably more worried about his family and your guy lying on the ground than they ar again that the government made no effort to preserve that evidence they stand here and claim that he never said that before they make it sound like this case was very simple it was not leroy draper lot of problems the victim  saw my client thirty or forty feet away over by his dog when suddenly he got hit well that puts my guys thirty and forty feet away and then he doesn't remember anything after that and i'm sorry i think i think we need to hear the whole argument again