taste stark's may have placed the court the parties disagree about a lot in this appeal but we do agree that the district court erred when it admitted the expert testimony from the troopers and we do agree that the prosecutor committed misconduct when he told the jurors that the presumption of innocence no longer applied and when he vouched for toyah every scrap abilities so with those agreements i would like to leapfrog over an initial error discussion and go straight into the question of harm and we're dealing with harm from cumulative error but it might make sense to approach that in a kind of graduated way by starting st with just the preserved little complicated so one reason i thought i would just start with the expert testimony problem is because i think we can reach reversible error there and that obviously is the government's burden and it is not unconstitutional that's the government's burden to show that  not substantially influence the verdict then if we need to add more errors like the presumption problem or the vouching or other errors if the court doesn't find reversible error on issue one alone then we add in the other errors  and then i have to persuade the court that if the government persuades the court that the st error is harmless then and that's under that didn't substantially influence and that will look a lot like chavez which this court decided recently and if the government succeeds in convincing this court that that one error standing alone is harmless then i think i have to persuade the court that the impact of the additional  errors substantially influenced the verdict we're talking what would be substantial influence and what it be a reasonable probability because i mean the a lot of these harmless error standards are ones in which the burden is on the government and them and  in this situation it would appear because you didn't raise khumalo there below that that if we do get into a cumulative and i thought your reply was arguing in that sort of that that that  l i'm just trying to get a sense that if we go in the in that cost your what what the review standard would be that we're looking at so that's interesting because i case i'm hearing as i'm hearing your honor maybe the problem a s because cumulative error was not preserved below wrecked yes so i don't know that i've really seen a discussion of the impact of that on the appe n most of those instances that i'm familiar with that's that's right you're right and then you ended up with the an argument over essentially you know most we did up with i guess we're at standard which is which is a version of this a meal substantial influence now i'm certainly going to go dig a bit after this argument as well so when we talk about the just the st issue alone i think probably the easiest way to talk about it is safad of the kind of harm roadmap that this court set out for us in chavez that cases have some similarities they have some differences but this court walks through thirty three kinds of questions there all of which are relevant here and those questions were what was the role of the evidence that shouldn't have come in what was the remaining evidence and was it overwhelming and was there anything mitigating in the instructions for instance so here the expert testimony you know it really did permeate the trial and the prosecutor you still great  he used it during his opening statement he starts out talking about the problem of drugs coming in from mexico and traveling across the i seventy corridor these drugs in particular then he went into during his opening statement the prosecutor said i mean th t law enforcement's view of the way the cars were driving that mr starks was driving as if he knew he was in a d chord vehicle which showed he knew there were drugs in the other car and then a closing argument he uses of course then that officers testify and it's a big part of the st officer's testimony and then in closing argument the government ends on that very notes the expert testimony mr starks demonstrated his possession his control his attention all the disputed facts in this case in emphasize this is the government's burden here on this one issue and i also want to emphasize that we're not looking to see whether the rest of the evidence if you remove the improper expert testimony we're not asking at the rest of the evidence was sufficient we're asking if it was overwhelming and it certainly wasn't and we can again see that with a with a few comparisons to chavez here like in chavez there's no direct evidence of mr stark's his possession of those drugs and  chavez here we don't even have a cooperating witness or codefendant putting the drugs in his hands in chavez the two cooperating witnesses put mr chavez in the car where the drug transaction took place and put the drugs in his hands here every says i can't tell you whether he possesses drugs i never saw the drugs i don't know anything about those drugs so we're a step farther away here we also of course have no forensic evidence no surveillance evidence showing mr starks engaged in drug transactions course no confessions and then we have the problem of twenty avery's credibility the jurors had a lot of questions about this case there was no jury instruction to not to disregard the expert testimony because of course the court thought it was perfectly admissible and we have the jury deadlocked which i think also weighs in favor of a view that the evidence was not overwhelming that at least some jurors found ability questionable some other questions about the case that left them without a belief beyond a reasonable doubt with respect to a course there's another way to view the jury deadlocked which simply the government argue that it's a guess that they were able to discern in evaluating way the evidence or really what one thing that's curious about that outcome on the conspiracy charge is how who linked in some ways it would seem to have to be  to the other two charge since they there were no drugs on your client and so it's leaves one as a head scratcher as to if they didn't find that they conspired together in he wasn't didn't have drugs on his person how it came to be that that so i don't know how much we can make a jury deadlocks but go ahead please right so i mean at it's the i don't think it supports the government's argument about the deadlock here because this isn't like a case where maybe you have a case with with the money laundering counts and tax counts and they have completely different categories of evidence and i think your honor was just pointing that out that here the government relies on the same body of evidence for all three counts but only gets a conviction on two of them so that sounds like a compromise verdict to me and remember this jury came back with several questions about the evidence so they were not this is not like a quick a quick guilty verdict like we might see in other cases i don't want t rail you entirely but there's one point i want to get up before you win and this relates to the january th the morn's and what i understood to be your hearsay argument based on the information that came in relative to the drugs in the house it's  the warrant why why the sense that the testimony initially came out during cross examination why wasn't the door open to the government's later response such that one could deem that in some sense to be effectively waived in other words that that you gave up the right to question there was what if i understood what was going on cross examination was designed say hey look my guy didn't have drugs in his house and you know so why did so what inference should there be that in fact you know he puts up the drugs the other time what the government wants to point out you know more toward that well you know there was a foundation probable cause not dacian for that warrant where they didn't find so my question is why why didn't you the the lawyer open the door to that line of questions i completely agree i completely agree that the lawyer opened the door to the subject matter but when you open the door to a subject matter i don't believe there's any legal authority for the proposition that you open the door to illegal evidence illegal under door to the kitchen sink but i mean but if the point is if the whole theory of the cross examination was to exculpatory in some sense to inference is that there were no drugs in the house then why why would they be able to say well yes there was a basis for the warrant that there were drugs and i think that basis just needed to come in through the officers themselves not through their hearing if i could reserve the rest of my time for rebuttal i would appreciate that done thank you me for these purposes today that you wouldn't have to preserve a cumulative error because basically at that point you don't even know what errors are going to be ruled on it just strikes ticked off all the things that were not as they proceed available hotel receipts because what i'm talking about now is the pre stop drug transactions that were alleged but they provide the predicate for a reasonable jury to think well this guy's a drug dealer and so why wouldn't this be another drug transaction well if there are no hotel receipts if there are no airplane tickets there there's nothing but her unvarnished word why isn't that problematic or they could have gone in purchased the ticket i mean got the tickets of the airplane or whatever he said they knew on i mean those things are easily verifiable well sometimes they are and sometimes they're not they're not sometimes it's easier said than done and i don't know if in this case the agents made the effort they obviously should have to think didn't and you're probably correct we gardeners probably correctly could have presented that the fact is that we didn't what effect does that have well we don't think that her testimony years is necessarily just because she was offered a plea deal in exchange for providing truthful testimony we agree that we agree that this court has said of somebody who gets of dealing exchange for testimony that their testimony is open to question but that does not certainly was not dubious sounders no problem with her credibility that's what has you know a lot about as he lied about knowing the other people in the other car she said she's lived in the past that me and this is the woman who said she was sick  ace a person like this they often testify in our trials somebody who gave a false statement at the very beginning and then and then gives another statement testifies underwrote those prior statements were not in the room this testimony was under oath to just give the jury got to to look at her demeanor got to consider her diction her scent tax where she put things keep in mind also that she didn't put any drugs on the descended on that from the trips anaheim california points if you problem for us i mean  that's why the other thing that didn't happen it's not as if she said yes those drugs that were in the car were his crime well but if she were going to lie and she were going to give us testimony that wasn't true she would have put the grahams on him but she didn't i mean we think that that brother would be getting out of jail and would be the source for the drugs and it turns out that the brother of the guy who cut his hair turned out to be going to spend it at the brother testified at the trial and admitted that the defendant that that  issue we think that the harmless error issue or the human are very few we think that that we think that we have the better part of that argument for a couple of reasons number one and i'd like to preface this by saying we apologize for the  we condemn it there's no excuse for it we're working on it were horrified every time it happens and we apologize for that being said in this case the court right after the prosecutor valves for the truth of way it could have been taken is it is the st prosecutor saying the presumption no longer legally applied which was incorrect now in our brief we go with the nd going to earth jason because that's the one that's the most beneficial to the senate and the fairest of the presentation of evidence and homey i ask you is it is that a common practice this or kansans i really i really haven't seen that you're never seen that i haven't seen that very   media see if the response to the ballot you read you got a gap of time between there's a presumption of innocence this is you know this exists and then you've got two days later the prosecutor saying well you know the we think that it's not because this court presumes that juries juries follow their instructions here the jury was given the instructions and they're presumed to follow those they were given the insurgents before the trial and also the trial they have the instructions were given the jury room typical or the more common prosecutorial misconduct based upon just sort of the due process fairness of the trial situation this one implicates is the th amendment right and it seems to me that i think the argument that she made about our or that the that the defendant makes about the lack of definition of trial it seems to me that's not insignificant because if he or at least arguably it's not because even if they have the jury instructions in the well we have to look for so long that point i we get we'll knowledge the court court gets a fair point and we can see how the courts to to provide that definition could could constitute lack of guidance for the jury but but you know they're in the trial the trials over and so the verdict is rendered and and so there are you know you have that but you know the court of the court was looking at the harmfulness if i could just point out two things number one you know you go back to that presumption the jury's fall instructions that is that is just a bedrock presumption in this court in the supreme court's jurisprudence and that's what we're following on the number to keep in mind also that that the jury acquitted on count one and this court said in the in the christie case the fact that acquitted on one count of of several shows that they were able to follow the instructions and they were able to fairly just the evidence and here and specifically we think that means the jury was not but any misleading argument or any valid she or any any known harmless errors if the jury was able to separate the evidence as far as the counts and actually acquit on counts we think that s the jury was able to look at these things individually figure out the figure out of the elements for man on both counts decide if they were met and come to an agreement well they're going back to this nichols point jimmy and her mom evidence hard to have well there are some circumstances but there have been where he wasn't conspiring with the people who were driving because i mean so i mean so i don't know how much said due to because they the evidence is so know connected how does that show that they exercised discerning well if they if they were swayed by all the harmful errors here then they would have just convicted on everything that's that's why that's our point but they weren't swayed because they didn't they turn everything i just want to point out maybe in response to something that judge holmes that asked about the jury instructions on the presumption of innocence something i think might be a little bit useful to the court i think the court understands my point about the instructions just say through the trial without describing the trial and and i combed that record i didn't see anything in there where trial where the judge talked to the jurors about trial and deliberations clearly and obviously included in that definition but what i want to point out is the medland case where defendant argued that the failure to define trial in that instruction to explain through that that it needs to present and carry through deliberations was not a basis for reversal there and the court distinguished between having a a less clear instruction from affirmatively telling the jurors that the presumption is over and one reason that the instruction was not as problematic there again mainly because you didn't have the prosecutor on misconduct that we have here but another reason in medland that the instruction wasn't problematic in failing to describe how the presumption carries through deliberations is because there was a question or something after that jurors were already in deliberations and the court instructed them during deliberations and restated the presumption of innocence n so again that one was about the failure to instruct more clearly not misconduct and i'm happy to answer any other questions but i think as i said when i started we we get to reversible error one way or another the question about the standard for cumulative harm is is interesting and i will look into it but again the court maybe doesn't even need to get their thank you counsel