responses he's questioning how they define it can in no way be viewed as a proper response to defend his direct testimony and direct testimony to defense attorney ask his client properly did you hear the testimony of the that in order to quit you have to believe that all the f b i agents are committing perjury and he refers to the f b i agents years of experience saying one has ten years of experience one is seventeen years of do at least you're starting to could you're not quoting the language i think it's important to close the language because i'd like to understand this record what we should assume from the tone of the tenor of the prosecutor's argument style  we do with a record like that where there are two possible reviews depending on what i think the most reasonable reading those two lines together that is a reasonable interpretation of the jury would take from that is that they everything up over the jury understands he is referring to her prison with the defense counsel then goes and we called super out of wells fargo blah blah blah and he goes on  yeah that's a natural reading of that sentence i think it would have been proper rest of the prosecutor's argument is that in response to the defense that we did call this other person and reasons i think that it needs to clean air standards and this this court is reversed in the number of cases under the player standard in similar circumstances and they generally done that when the evidence is vital please the court thomas flynn for the united states or i get into the individual instances that i'd like to mention three principles that i think are important here one is that this is a plain their case defendant never objected to any of these things and i think as i go through this that will play in at several points because the main result of that it says that it is the defendant's burden to show prejudice to show the air and finally show the la this court's reputation and integrity i'd also like the court to keep in mind as i go through this that the defendant relies a lot on this weather system case and i think there are a couple of things that we have realize about that case before we get into the details of it were two separate kinds of error in that case one is the kind of instances we're talking about here where the prosecutor was making references to various people lying and so forth but the other was that the prosecutor made this argument about appealing to the consciousness of the community to get this man off the street in the panel majority discusses both of those and concludes that that would have been plain error they don't decide whether which standard applies that that that was sufficient enough for plain air that is concurrence judge trott disagrees with the majority on the first part but nevertheless concurs with them on the grounds that the latter argument was in itself enough to make it plain air now ninth circuit that's correctly i grew thank you as much as we love them and respect us and as much as i wish she had been on the majority in this case but i think that's just something to keep in mind not do sort out well that's what i'm prepared to do first of all i'd like to talk about those ones which i think were not improper comments in the first one is this one about the idea that the defense was this all comes out when the defense and this is on page five eleven of the reporters transcript which i have it the supplemental excerpt of record of page one forty three the defense is the one who brings this up and what they say is if the government felt that there was something untoward about the purchase of the cashier's check twee mystery here in the teller how difficult would it have been to call the teller at the teller testified i reviewed the records and i remember this guy came in and he response is called the collar but they didn't because it's not what happened right very specific right now and we are entitled to that point to say we don't have to call the teller and that's what i think this says i think you need to go back as i think  you were starting to do to look at what happened before the prosecutor's comments and what your correct is he's going through the defendant's arguments because this is after all his rebuttal and he's taking off at the beginning of each of his comments what he's talking about for instance i'm now on page one seventy five of the supplemental lecture of record recently we heard how yuri bought the check in his own bank who would do that then the next paragraph he didn't do anything to distinguish himself that he didn't buy it yeah then again again i'm like what he is characterizing all through this what the defense is what they're contentions are and then the rest of these paragraphs are his rebuttal so the first part of this is just a summary of what the defense said we didn't call the teller that would have cleared everything up that's exactly what the defense was claiming the government should have called the teller to clear things up and instead he says what we did we called this representative of wells fargo she showed us the pictures the picture showed that yuri was buying the check the records that she produced showed it was purchased in the name of steve bruton that was enough that seemed to make the point we needed to make all we needed to prove all we ever argued we never argued in our argument if you look through this that troy yuri showed up with an id our argument was purely that he was there he bought the check say that we putting the government's authority behind them in fact they that's what they criticize judge trot for accusing them of he says that we should limit it to that and they say no no we don't limit it to that it's broader than that so it's improper think are that as all of the cases say you don't look at these statements in isolation you look at them in the context of the trial and when you look at some of these statements take for instance the one where he's saying you have to believe all of the starting on page that reporter's transcript five fifty or sixty four eighty seven he starts up by saying correctly that the judge will instruct you to use reasonable doubt based on reasonable common sense as jurors that's what you bring to this process your reasoning common sense so the whole context of this is what's reasonable what's common sense in order to find a not guilty you would have to abandon completely your reason and common sense you would have to ignore the testimony or conclusion that basically every other witness you heard from was lying except of course during now the cases say he's not supposed to say that but i will say that's that is the state of the evidence that is true and that statement i think this not put the prestige of the government behind anything it just states a fact you believe the defendant or you believe the government's witnesses the whole thing right ok of all of the persons of all the persons you heard in this trial who had the biggest motivation to lie then in speaking about katie mcguire and nicotine this blanchard he says that first of all in place that they don't have a motivation to lie and they're backed by statements that they've made you have to believe that the phone records and then he gets to the statement about the f b i agents which is not true but i'm not i'm not trying to argue that he should have made this argument but i'm saying that they are embedded in larger arguments about the credibility of the jury that make them less blatant things for instance the statements that are made and whether some where he's just flat out hammering on these agents are lying these agents  shouldn't the agents are not blind the other part of this i think which needs to be considered and which i disagree with mr ballasts on here yes ok so they hear that and they're the ones who are pointing finger at so called directed if you will or in indirect from the car so why kind of tipping on the finger on the scale that  weatherstone that is true but you also have to it's it's not it's not every time that as someone says this it's automatic reversal first of all this is a plane air case and i'm not aware of any plane era case that has reversed simply for that there is always something else for instance that one of the cases the defendant i should just give you some part of the evidence in this case and credibility determination and that's why it is like to tell you why why it's not first of all the four it's not just that they have some phone records let me point out for instance that with respect to the earlier incident before a four b incident on that friday there were thirty nine phone calls from this man lobby to the defendant and one hundred twenty four phone calls to gary or g and katie maguire and the previous friday which is no different from this friday except for the agilent is that it is nothing like that there's nowhere near that number of calls that's a lot of telephone calls and they all cluster around the time of the instance of the incident at a one hundred and twenty four phone calls that's a lot at the time of the the incident that they're charged with there are sixteen phone calls that waddy makes to your e in which your himself said that the content of those phone calls is la di asking me have you talked to orgy yet have you talked orgy yet well your the story is that i don't have anything to do with what's going on there i was offered a job there and i turned it down was the sky lobby calling  ask about orgies and then right after the agents are arrested there is a forty minute telephone call between lottie and the defendant what are they talking about for forty minutes he's turned down the job i mean the only reasonable implication from a phone call of that length is that they're talking about what went wrong something clearly has gone wrong here where did it screw up and if lobbyist trying to get ahold of orgy why is he calling yuri why isn't he calling himself why is in the middle of all these phone calls of an infinity of absolutely nothing to do about another point when the warehouse when the time imagine this warehouse here's an empty warehouse that the defendant as he turned down a job to sell computers from their new computers were going to be delivered there because it was going to be a computer store they go up there they put the sign from some company that nobody's ever heard of an empty warehouse all it got is the table some non functioning equipment doesn't even have a c p u on it there's no internet service or anything there there's no decorations on the inside or she goes from reno to san jose he picks up yur yuri goes with georgie to sacramento they put up the signs they buy the stuff they put it in the store or anything goes all the way back to san jose and presumably then goes home where he's a bookie you know you know that makes no sense first of all why is he your e in this he says well i do lots of favors for my friends well if he's doing favors for his friends why with this friend drive all the way to san jose to pick him up to go to sacramento none of these things make any sense at all then there's this business about the check which i think and i think the jury would think is just preposterous on its face if this man a lot he wants to get money to a leasing company in pleasant hill w money to your so that yuri can turn it into a check and then take it over to this company why doesn't he just wire the money to the company these are all computer people they're going to with wire money to somebody can buy a check so there is a lot of other evidence here the other thing i would like to point out about the evidence if i may is government's exhibit forty seven which the defense moved into evidence and this bears on all this in a lot of different ways there was a lot of comment about th state that the bottom knew it was a scam and the defendant objects to the prosecutor's reference to that if you read through that part and i'm prepared to do that what the prosecutor is doing by asking him do you do you say that the agent made all of this up is because the defendant story about that namely that it wasn't there doesn't make any sense when the defendant is asked on direct examination did you know that that statement knew it was an did you know that was there he says no i didn't know whether it was there or not but this is important because  statement the defendant's statement he wrote on here in its own handwriting reviewed with special agent paul hartley in troy yuri on correct examination he's saying well i didn't really review it he never read it to me i just kind of signed as he told me to when the prosecutors cross examining him what he's trying to point out is there's not just the statement knew it was a scam if you look up higher there's lots of incriminating statements here freud eerie asks lobby of bout what to say if the police ask questions he told by troy yuri say when to eat there so you fight for your ring gary when to be there he would receive them and put them in the warehouse wait until shipments come lobby continued to say shipment would be there every day these are all very incriminating statements and unlike the last one they could not have been added later because they're part of a continuing flow of the text and if he had added all of those later there would be no sense to put this line and the comments here at the bottom so what the prosecutor is trying to get yuri to commit to is whether he just didn't see this at the bottom or whether he's saying the agent added it because agent added it then the rest of this doesn't make any sense why would the agent just add this one when there's all of this incriminating evidence so if you look at what the prosecutors says he says are you saying that special agent partly made all  stuff because he hadn't said that before and he gets him to say yes yes this statement knew it was a scam was not there before so this is all made up but that this document in which the defendant essentially so the government's position is that there is a lot of evidence ignored by the defense and if you take that and spread it against the statements that the agent shouldn't have made and the fact that in saying it is i'd like the court or members of the supreme of improper argument or examination i pointed out there's a number of cases and each one of those points to find it to be an error and sometimes plainer in terms of the overall evidence here the government thing and he never agreed that he said that and when he went up on the stand he testified he adamantly denied over and over again that he said those things that were in that statement finally in terms of the phone records the prosecutor fire for the for the prior fraud and also troy explained that as well over fifty five fifty five of those calls were less than thirty seconds that's what the phone records show he explained he was in an area