what when you see you say location each time that gives the cell tower to which he used a phone or received a phone call is that right now on his cell phone  the tower the cell phone tower from which the cell phone he was either using to call or to receive a call ping not necessarily when he was using the call there were times that cell tower location identifies where your phone is even when you are not using i thought though that in this case that that technology had not been developed in other words if he's just carrying along with them i understood that more recent technology you know sort of grows every day that the more recent technology did do that you just carried along with you an attractor every minute sure your exact location or to lease to the to the cell tower that was nearest you but i thought this  was only operated by a phone call or receive a phone call that wrong no i believe that's correct judgments but that's actually a critically important factor in one town to find the privacy interest here me i'm just but i'm just interested in is no phone calls coming in or out this is was this isn't a trick question mr i just didn't work quite understand that is true in this case of course because technology in this area does continue to evolve it is important that the court take notice of the fact that intrusion and privacy is getting worse not better particularly with the proliferation of cell towers and not just of cell towers but the intensity and narrowness of the range but let me make sure i understand he in this case he only had to be either using the phone to make a call or to receive a call or abort yeah right so he had to actually be doing something in this case no he did not have to be doing something because by receiving the call or the text well was not doing anything wrong receiving a text ok i think your honors after riley there can be no more question about whether a privacy interest exists the supreme court unanimously described metadata on cell phones including historical cell site location information as one of the privacies of life i'm like not this is not simply augmented observation this is retroactively recreating past events that were never observed and were never observable here averaging one location point every eleven minutes for seven months and like the supreme court noted in seemingly true that there would not be a reserve of observable me somebody could have been trailing him around hundred federally well not in this context because the movements had already happened so in jones theoretically somebody could have been tracking him because it was ongoing prospected lee in real time this case it was not it was after the fact the government decided to go back and retrace his steps so it was not  observable and like the supreme court noted in riley and multiple other courts in the last couple of months historical cell site location information tracks people into constitutionally protected space which is wh best argument for why the third party dog from doesn't apply there are there are many arguments for why it doesn't apply judge davis the most critical reason is because the records here  nothing at all like the records that were at issue in smith and meller the it that level of intrusion of privacy is just categorically different smith turned on the fact that it was a very limited amount of information that was conveyed and that it was the precise information that the user conveyed to the phone company the supreme court in a reilly described registers has not a good analog for what almost the same arguments you do you make i mean it's really quite close and you have to remember that those were back in the days when i was a young woman but these cases were decided so things that were new then aren't are taken for granted now we can't you make an argument that the information you got from the pen register was a deeper wider set of information than information you get from the ping you actually know the time and you know the frequency of the call you know to whom it's call to whom you're calling you know where it's going from you know it's going from someone's house and we've always said that the house is a protected area well you wanted to some extent if you were you up here you could make the argument that they've already decided your case that's within the that case well except for the fact that that  third party doctrine didn't stop with smith and ferguson for example and in kwan where information was absolutely shared with third parties that was also detailed and extensive the supreme court recognize the fact that that was conveyed to a third party did not eliminate the privacy interest in addition the third circuit described how the sharing of location information if you can call it sharing because it's not what the it's not what the user intends to be doing that it was not meaningfully shared in the way that bank records were in miller or the dialed phone number was and smith  i'm still nice that the sure if you in answer to my colleague's question what maybe he said there are many reasons so maybe you can tick off for me the three biggest things that you think make take this case out of the third party doctrine well one i just eluded to which was the third circuit's reasoning which well with all due respect to the third circuit it's a great circuit but we have to be have our eye on the supreme court right absolutely we don't have that's not a supreme court case and so we're looking to fit this in within the structure of the supreme court case and i'm taking your time to go ahead and give them a government more time well it is true that the third circuit is not the supreme court but i will also note that riley described riley did not take on smith obviously but it did take the opportunity nonetheless to describe how the information was different and the fact that it was known by the cell phone service provider potentially by being stored in the cloud did not eliminate the third privacy interest it also described how even if there is some diminishment in privacy interest because of some level of the reasons the rushnell is if the privacy interest is great enough like personal medical information or your every move for seven months or who you are with or where you are if the privacy interest is great enough then the fact that a third party has some knowledge of it or is the conduit of that information that is somehow used in the scheme of it in the way of it a bit as i said to you in the pen register case there was greater in from amount of information than you really had less privacy out there so i don't i don't exactly understand what you're saying well with all due respect judgments i don't believe that it is greater information most well there is more particular information about a given individual than the pain on the tower i disagree because nobody knows with the pen register case who is actually using the phone and it could be anybody in the house and with a cell phone you are able to draw the pretty clear inference of who precisely it be and give yourself and to someone else think of me using it sure you can just tell somebody else can use your phone in your house and they know the phone is in the house independent of your case i don't think that's that's your best thing and just like when you are traveling someplace and you are not actively doing anything but simply receiving a text or the phone calls or is on the pen register even if you receive phone calls that you didn't pick up it was on the pen register i believe the pen register i know is i've i'm you go back with the case i'm pretty sure about that fair enough your honor i will say that the supreme court has never required absolute secrecy looking at all of the cases of information that is shared sense smith and miller smith and miller are the are the i as i've heard them to be out of the third party d the most the greatest expression of the third party dr and i take your point and so should we just pick should we just say that they no longer apply in the digital age is that well usually what you would have is do i i was trying to right to think you know i just cries are we saying how do we write this right so when since we are in what is generally known as an inferior court inferior federal court as opposed to the supreme court we would try to wri consistent with supreme court law court those cases still exist they do still ego that's why i'm trying to get you to give me a rationale to right around or to distinguish them in some fashion certainly and the reason would be  although i believe that they don't but smith and miller really does need to be reexamined i understand this court is not the court to do that but tracey the florida supreme court augusta and they have not had to reject the third party doctrine at all to recognize that the level of privacy intrusion and the active conduct by cellphone use are simply don't race the privacy interest that the privacy interest is so great and that the cell phone service provider s basically the artifacts of technology and the way that technology is used does not bring it with in the same realm as smith and miller in miller in particular where the customer was providing deposit slips and checks and that data was the actual data that customer intended to convey here it was not any degree of intention i know that i've  good morning may it please the court there are several issues before this court that are unique to mr jordan is a proper for a judge to place a per se limitation on otherwise competent and relevant testimony of a defendant in order to prevent him from implicating his  aiding and abetting nine twenty four c and robbery convictions be vacated we say yes roseman now requires that even where unlike here the defendant was present when the gun was displayed as to both defendants whether a lay witness who could never  qualified as an expert may testify about technical matters like how cell phone towers operate on radio frequency energy wave propagation and then give a lay opinion as to the location of the defendant's phone we say no compliance with rule seven zero two w required because this is clearly grounded in technology and we would note that the nist guidelines on cellphone forensics publication that we cited in our brief was mentioned by the supreme court in the riley case in their discussion of cell phone technology would first like to touch on some assertions that the government has made about the record with which we disagree this is important because the government relies on these mistaken assertions to support their harmless error arguments for example jordan testified that he was not the getaway driver what can you point to in the record show that any or was preserved and we it was made very clear first of all on numerous occasions months before it but i'm asking you if  answer your question judge first i would say that if this specific page in the record on on the appendix twenty two ninety five where it the if count jordan's council had actually asked the court to invite advice jordan o rights jordan's constitutional right to testify before we get a beginning of the defense case and the court said yes i will and men on page twenty two ninety five said you have the right to testify and i'm paraphrasing here  sorry you're not responding to the question that i'm trying to get you to focus on well as i understood i understand i think i understand all that went before but when did counsel stand up and say judge we object to this counsel never said i object to that and in fact as i understand the record counsel thought what the judge had ordered was pretty much ok that's not my reading of the record because it was clear to me that well you weren't there just to say that he wasn't there but from reading the record yeah i mean when i go to read the record and i'm looking for preservation of error not waiver but in this particular case where it's been made clear to the court numerous occasions already my client is going to testify this is what he's going to say then the government and all of that understand all of that and in a different record yeah there may have been a violation but where is there evidence that this wasn't waived by really comes down to because your answers haven't been very satisfying i don't think so judge because just in the like in the midget case where the client made it clear he wanted to testify and they the court knew that the client wanted to testify so you want to read defense counsel out of this scenario entirely in other words your argument if i understand it is that the fence counsel cannot wave a defendant's right to testify well certainly not with that and that therefore where a judge does what the district court did here which is to say well you know let's keep it clean and let's not talk about these three things and when you talk about this other thing talk about it in this way not in some other way you're equating that to a waiver by counsel of the pious right to testify is that a fair summary of your position here i'm not sure that i agree with that where the court has been clearly told by that right belongs to the client not you harm arguing that the defense lawyer improperly waived his client's right to testify if that's what you're you know sir i'm i'm saying that this was imposed by the court and even the court recognized it and the government even used that type of language in their brief the court said i've imposed this upon you and when they read when the court read the rights litany to jordan he said you have the right to testify never this is and the sixth amendment right informed by the fifth amendment right to testify in one's own defense is that what you're saying and saying with this is grounded in the fifth amendment and sixth amendment and the fourteenth amendment as this court has observed and only the clip only the defendant can waive his right to testify and he was explicit that he was not and he tried to testified to that but even if it even assuming that that white was waived and don't think that the record supports that particular when the judge advis if you assume the right was waived that's the end of the argument and well because you get into i don't believe so when you get into the unfairness of the government's comments in closing exploiting the absence of those statements which had been omitted based on the government's request it commenting on that and then specifically admonishing jordan to the jury that he should never have taken the stand and essentially insulted the a judicial process by exercising his constitutional given me your best answer you're sort of out of time so i think there may be a couple of other issues with judge about this we are well certainly it to to keep in mind that this is an entirely circumstantial case the against jordan was extremely thin and with the limitations on his testimony combined with the inappropriate comments of the prosecutor in closing which this court and woods in other cases have said is absolutely inappropriate especially to accuse him of arrogance for taking the stand that so infected the entire process with unfairness that his conviction should not stand is the court rod rosenstein of the united states going as we submit that this is an important case but not a complicated it is not difficult because the third party doctrine controls the outcome it's an important case because the defendants in essence are asking the court to overturn the third party doctrine and we submit your honour's that if the court were to do so it could not simply be limited to historical cell site information i believe that the defendants cannot argue in good faith should simply carve out historical cell site information to preserve the third party doctrine in all other areas in fact counsel candidly acknowledged that he thinks the court ought to revisit both smith and miller which of course this court is not in position to do but it's notable your honor that there were two cell phone seized in this case and one of the important facts if this court were to adopt the defendant's line of argument is that the government in fact complied with riley why is that we're on as we obtain search warrants for both cell phones which were recovered at the scene at the time of the arrest we didn't search those incident to arrest we obtained search warrants for those cell phones but the information at issue in this case was not on the self so why is that that's because it wasn't the defendant's information this was sprint's information the defendants did not keep track of what cell towers they used sprint it spun up and now their way of looking at it is that they didn't dictate into the telephone their cell phone what their location  but only the pain would give you an idea that so you're jumping to into the argument that the ping information is not there which is sort of the crux of this case isn't it that i mean i think the third party doctrine both of those cases the cases that really sort of stand for to the outer limits deal with the voluntariness of the disclosure of the person in is an all of the rub here whether in some proactive steps to collect information that often involves what we sometimes know and i do understand that the case was made a distinction i don't not actually sure that i think real time tracking is worse than  tracking but i do understand that there is a distinction when there isn't real time tracking qualitatively worse or not the point i was making your honor is that it's government involves government action as the government it's contact the cell phone company or somehow reach out and what we would say is paying the phone to cause it to produce information but this case this requires government action and government has to ask the cell phone company for the information it's exactly right the only government action here is asking for the records that have already been carried independently by sprint for its own purposes and we think that's significant another issue the defendants amica contend in their brief that somehow the government's responsible for creating this information there's nothing in the record to support that proposition what if the government did have a regulation that required them to support to gather this information if the government require them to create the information when they gather it it still have the mechanics but to do with it what they do that would make no difference to our argument but it would do the defendants argument because they seem to be separating the issue of the creation of the time the phone company didn't necessarily record local phone numbers it recorded long distance numbers for billing purposes but it may not have recorded local numbers but what was dispositive in smith is that the information was necessarily disclosed and to return to your question our position is that voluntariness in this context when the government is not involved in the creation of the information voluntariness is simply goes to the question of whether the defendant necessarily disclose the information in the course of some voluntary activity for example but so did they how did they hear it's necessary or honor objectively in order to use the services of a phone company you need to connect to and that everyone in the country that has a cell phone has no reason privacy is that right in there ok should it work and no our position or honor is they have no reason expectation of privacy in the tower that the phone company uses to complete the call that's a little bit different than saying in their location and the that was that different it's different in the sense a cell phone is capable of computing your actual location effect most modern cell phones will do that they use what's called g p s geo location and they can tell you precisely the launch to the latitude where you're located you may want that for your own purposes you may disclose that information to third party but that information is not what's at issue in this case in this case what's at issue is the connection to a cell tower our position but it's a matter of miles which is meters versus kilometers versus precision but it's a matter of why the government wanted this to put them in particular patients at the time of the various crimes too as was pointed out earlier your honor puts the cell phone in a location you add that to other corroborating information to prove the defendant was in that location one piece of evidence but your honor it's really no different than any piece of information if there's a robbery we often will collect surveillance video of the defendants didn't know there was a surveillance camera that surveillance video would show you there in that particular location the purpose of the video wasn't to locate the defendant it was for the store to keep track of activities for its purposes but the defendant by putting himself in a position where he engaged in a transaction  opposition your honor is that this is really no different than the use of a credit card or ordering from amazon dot com or anything else you're out of the cell phone is given to the defendant as a gift that in other words the voluntariness necessary here is just turning it on and having it having it on your person or in your vehicle no your honor double what's the voluntariness other than other than just turning it on and having it on your person in this case the voluntariness is asking the phone company to complete the phone call for you need to have you can use a smartphone without a connection to a network you can turn it off in airplane mode and just use it as a state as it is like the person who gets a cell phone as a gift my stepdaughter cell phone she's voluntarily in other words that's all it takes in your submission you turn it on you have voluntarily submitted to the providers decision to keep track of your movements even for unanswered phone calls you voluntarily where you literally never have to use the phone well remember eon of the issue in this case has to do with completed phone calls it's not tracking outside of phone calls not completed but by phone calls incoming outgoing exact so you don't have to answer the phone for this to be implicated by trying for the quarter or otherwise would necessarily require you to find that the phone company is committing some sort of sprint then does with it and then gives to the government where sense not the case with the telephone or the bank records mean you know there was a different item is coming out then the person put in yes because you just gave them this person uses the cell phone and there is the ping there without any location if you didn't tell them the location thing which you would have to win have to do that are if you're driving your car down the highway and you pass a camera that takes a picture of your license plate that information is now on the camera license plate is now on the camera that the the person who goes through a toll booth for example to pay a toll with an e record is kept of the fact they use the toll booth it's really not any different in the sense that you're out of there when you turn on your phone and you request service you have to sign up for service units sign a contract what is that you have your cell phone in your home sometimes not out on the public highway it's in your home it's like a regular right just like a regular phone i mean you know if you want to use it you need to plug it in now although a wireless wireless phone connect wirelessly it's no less of a physical connection and sprint needs to have a tower to complete that call you can make a call in less there's a tower and you connected to that tower and you have bars on your phone indicating that there's a connection so in order to complete the call you can use a smart phone all you like in airplane mode if you want to take advantage of the wireless connection you need a provider you need a cell tower to complete that connection and that's the that's the voluntariness in the context in which it's a third party collecting information as i say it's not there's no allegation here that sprint violated the defendant's rights  by keeping a record of what cell tower the defendants were used what was the import of when the government's position of congress saying you can get an order or you can go to war what's that all about is that congress mind but i think that if you look at the statute the purpose of the statute was to create some statutory protection for information the congress recognized had no constitutional protection and we think that's the appropriate way to deal with when we look at now when would get a court order if you're looking only for non content information well but he wasn't content it's not covered by title three well your honor there's some ambiguity about the content for example of e mails and i believe in most cases we are don't know there's a written policy or no it's been our practice that obtained content information and we're using warrants and of course you know in the wake of the eleventh circuit decision before was vacated i think many offices were in fact using more and just protection against that that's one of the weakest parts of your case it's hard to understand why you didn't get a warrant here but when you had them in custody you knew they were bad guys at all that seems to me all kinds of stuff that you could put in parties third parties we had to go we went out this is what he got something so why not get the warrant you know well you know one reason your honor is that the judges don't want to staking their time getting warrants when they're not required by law but didn't w no no he actually said now the davis has been vacated why would you have a need to do this but anyway i say i can't answer the question as to why congress provided those two options i know that our position is that we were seeking information that clearly third party information non contact when i say non content what i mean is the location of the cell tower something sprint needed to know to complete the transaction you're on and you know it you uses u p s or amazon or federal express they need to know where you're located to deliver every seven eleven robbery every mcdonald's robbery every gas station robbery in america the united states attorney could theoretically go to a magistrate judge and say we want all the cell site location data for every phone with then a two hour period of the robbery and you could you could you probably already have algorithms in place that in about two minutes could identify you know the nineteen phones that we're talking that we each other with then a mile and a half of the it if your argument just now was this was just investigative activity looking at pieces of information that's right what i mean the basis for the order here was that the defendants were suspected of being involved in robberies right and you're hypotheticals the same thing and i would say yes and thank god we can because there are cases where it's really necessary to do that you have a kidnapping we had one recently a kidnapping in which we're able to identify the location of the victim in the perpetrator in part based upon cell phone tracking and it sounds like i just in circumstances from here till sunday that you know here you had guys in custody what appeared to be a fairly substantial circumstantial case had in just like next year the cell phone company able to track and collect all to real time location so that they were aware of your exact location at every single moment is there any hypothetical to some extent it's reality i mean many people permit third party vendors to track their location you can put that option on your phone and when you walk into target target knows that you're there that that is an option on your phone on like this i mean nobody's clicking on their phone to be tracked but you've asked me about the hypothetical and the hypothetical i mean if you're making a voluntary decision to turn over that information for commercial purposes to a third party provider then my answer would be yes we can obtain that the same way and that's why you know why do we have taina order in this case we don't and in most cases that are not protected by the store communications act we don't go to the judge at all we just issue a subpoena for the information and where would the defendants draw that line you look at miller for example think about all of the commercial activity that becomes relevant criminal best geishas where you want to go out and subpoena somebody who may have sold a weapon to a suspect we would have to go to a judge if there were a requirement that in order to get third party records you need a court order so what i think is important to recognize here is we're talking about a situation where because the store communication we actually have an elevated requirement to involve judges in investigations where the baseline actually is that investigations occur third parties are questioned and informations of pain without any judicial involvement whatsoever so what was it that the defendants did here to voluntarily provide information that the government could the phone in their home and the third party created the record but again our position your honor is that in the government's not involved in the creation of the record voluntariness is really not an issue in the fourth amendment analysis i don't think you'll find that in the cases where the record was created by a third party acting independently the government and the government's only role is to come in after the fact in the record i believe it's quite clear the defendants have talked about government involvement but you know the factual record is clear in the district court found and the sprint witness i believe testified that this is able to open on the lopes if they think that there's something suspicious inside they may open it and turn it over to the government they've got the defendant would have consented to that but the third party did it and that's my point the third party doctrine is a bright line where if the action taken by the third party was not done at the order of the government then the defendant has no expectation of privacy that's an action taken without any government involvement oh so i think that's a that's a useful analogy where what we're talking about here is simply the address  information on the other look where did fedex pick it up where did fedex deliver it we're not interested in what was inside the envelope thank you very much judgements i wish i had thought of this my first go around but i would like to say that kero and kyle lobo thw are decided by the supreme court after smith of course and those discussed tracking electronic means into a private space and found that the fact that there was tracking outside did not matter the third party doctrine was still not enough to eliminate the privacy interest and of course you know it ferguson and con and so forth and reporters committee to talk about how when the information is not intended for public consumption it still remains private even if the government has access to encompassing information it is it is not a situation where fedex or ordering something on amazon is remotely analogous those are those are mail or those are the situations where the user conveys specific information intending that company to use that information to provide the specific service is still there here there were two orders yes the first was fairly narrow you agree to do can you give us some measure of how much information the government used it was derived from the first order as opposed to the second i'm sorry judge david i can't be that specific but i what i would say is that given the breadth of that order it was broad enough that i chill it and customary fourth amendment analysis when when when a warrant is too broad and things to see just mostly what we do i think you would agree is we say well let's look at the war and see what's clearly cover and that doesn't get excluded you only exclude what's beyond the you know on the boundary of what would have been a particular war but as there's a principle  these were general warrants these were exactly what you know the dragnet general warrants and i do not believe that the government could have gotten a warrant for any of this information because the actual applications that  submitted said essentially the defendants were arrested and had cell phones and we have some unsolved robberies would sure like to know if they were nearby they had nothing particular i's to about the defendant so i don't believe they could have gotten a warrant based on what they submitted maybe they could have crafted an application for a warrant that did include more particularized information but but what they submitted here was not the equivalent can we talk for a minute about good faith sure because that's the elephant in the room is that it's an elephant  does not unlike kroll where it was a very limited statute you know i'm not sure it's correct to say it's contradictory not to pick on the words but congress said you can use this  and you can use this procedure and the government chose the arguably less onerous procedure that doesn't contradict well as it fair enough but what it does not do is it does not limit law enforcement discretion and ok i know you've got two other reasons but i don't think the government's arguing here is specific you know they're not tying the government that is not tying itself to crawl and the statutory authorization argument i think it's more of a totality of the circumstances sort of a more traditional good faith analysis one factor of which is after all congress said we could do this so so so i don't think you have it you see without what i'm that's one of the circumstances another is that it was a lawyer a prosecutor one of the advocates in the in the prosecution who was the person seeking the order it was not simply a police officer making a split second to say that kind of hurt you doesn't it i don't think it does i think that what what chad course never told us that we're supposed to be deterring prosecutors well the  mistakes why not prosecute because the supreme court has specifically said that magistrate judges are not are not likely to be deterred because they are not parties to the action they are not they don't have a stake in the prosecution prosecutors like police officers have a stake in the prosecution and herring talks about the whole point of good faith being trying to deter future violations i blog for sort of which should include other advocates in the us and you agree there's no supreme court support for the notion that good faith doctrine is intended to defer prosecute the people who the supreme court has talked about as being not subject to deterrents are clerks in the clerk's office and somebody is either acting recklessly or grossly negligent lee and is making a choice that violates the fourth amendment and suppression could change that no i'm not asking you to do to her congress because congress that got a warrant congress all of them said get a warrant in order and courts sense congress said that courts had gone all over the place you know i mean like you can tick off a scorecard courts that had said you have to get a warrant or know you can get an order how does that help your argument that helps because that's where the facts that it is a litigant and a lawyer comes into play because at that point that somebody who should be charged with knowing about the constitutional debate and at least the fact that the statute is not the most constitutionally sound statute out there thank you thank you very much judge marks says the cases are being decided not just for today but for the future and i'm thinking back to my own very happy days as an overworked federal law clerk and i remember how helpful it was when i knew in advance whether or not a defendant was going to testify in this particular case it's ironic because if the attorney for mr jordan had not cooperated with the court's requests on several occasions to tell him whether or not jordan was going to testify and simply saying i don't know your honor in play that kind of game that the government is advocating his client would not be in this position he would have just taken the stand testified to what he wanted and then according to the government created a mistrial and i think that's the type of potential brewton problems he had to disclose it have to be specific exactly what i had to stay on the say on the stand and in this particular case though i would also point to the fact that in in the the midget case where the not only did the fence counsel not object but he was the advocate for the defendant not taking the stand and the court's decision was grounded in the fact that it was defendant who said well i do want to take the stand but i can't him in this particular case jordan is on the stand saying i want to say these things and i explicitly said there are things here that i cannot say so when it comes down to addressing the waiver issue i really think it's important to look at the practical realities of what happened in this case and what's going to happen in future cases depending what type of a message it said furthermore i'm not sure that we're looking at the order of how all this transpired correctly somebody asserts that they're going to introduce particular evidence or trial i'm going to testify a trial says the defendant through his attorney objection says co counsel objection says the prosecutor granted says the court that doesn't mean that the defendant never raised the issue to raise it on multiple occasions it was raised in the middle case now if you look back at the thing i think that the judge davis questions were going to was whether it was preserved because i personally read the record as the arrangement with the government and that the government of greed to and that it's just recorded said originally  was different than the conditions under which he was required to testify but the question is whether he preserved whatever the original understanding was or nah and that's what the record and try to figure out and that it is going to the extent you can maybe don't think that's valid but well you maybe could address that well in the in the middle case for example with the defendant himself to preserve the issue and certainly in can knowingly put on perjured testimony and yet constitutionally and ethically a lawyer must advocate for her client's rights etc vigorously so on so clients says the lawyer this is what i'm going to say creates problems for the coconut for the codefendant government is concerned doesn't want to try the case twice courts already denied a severance and the court says ok to protect the rights of the codefendant while at the same time permitting the defendant to want to testify to testify here here the things he can't say now defense lawyer standing there and knows that he or she has to say your honor i object and thereby preserve the record acquiesces because what the judge has propose he lied as a looming ethical conundrum for defense you're you're don't think that's very well i i don't think that's what happened here  i don't think that's what happened here in the reason i say that it's because the fans council in that case said a number of occasions i'm not trying to be obstructionist judge so clearly what he was trying to do was not stand in the way of the court moving forward there's absolutely no indication that he had any reason to believe that this wasn't true and evidence with respect to your client is pretty thin it's extremely thin it's a purely circumstantial case and particularly when we look at the the rolling and rosemond where you have to establish intent in advance knowledge is an ability to talk about these things which were central to exactly what he was the core of his defense i think it was it was error that the government simply can't overcome especially in view with the way they exploited those absences during their closing arguments thank you thank you very much and we particularly thank you mr nec as i understand it your court appointed we very much appreciate your efforts we couldn't do it without we will come down and play for the lawyers then go to the next