information being given to the jury for consideration the prejudice that it caused and and the sentencing those are the three basic parts of this is just to get into small couldn't even identify the defendant when he was asked who is this is this mystery i guess he didn't even know who he was and then think about the volume and the content of the testimony officer small gave he didn't even know who he was what differen because the information that he gave is that this is a big time dealer he talks several times about phone calls that were made how could he possibly know about those phone calls he could that was that was obviously that was prejudiced but it was seven it  eyes of the government was to give a background or at least that was the guys under which they were which they presented it was a background but there was clearly information that came in that was testimonial that in no way served as a as a test circuit tied together to say that there's no way you can bring all this information and even into the guise of background crawford is the confrontation cost right so if it's if you were able to cro information that what you're saying you know anything that's why i say this kind of kind of convoluted there's at least two sides one is officer small brought in a lot of information under summary testimony that he had no personal knowledge to  under background but again it was too much information let it under that that there's no way for the realistically for the jury to keep track of crawford does say you can let certain information and if it's not for the truth of the matter  again the volume of information that was let in and again as you read through mr shogun lost track of that he talked about it as testimony when the witnesses and the attorney lose track is the where there's testimony or background i don't think it's a far instruction and the instructions however if you read through there there were times where there was testimony that background the testimony the background it was it would be the testimony and the so called background were so intertwined it literally i mean for me i had to read it two or three times and i'm not sure i've got a broken down hit exactly which was the you know broken down exactly here is a jerk listening to it once and that you're supposed to trial i don't know that it was a quick crawford was discussed actually crawford was brought by mr shoulder and i think more than mr aldrin but certainly judge jr will judge shade consider profit at least to some extent i know they discussed it it appears that some of the information you're complaining about was not objected to the example of the anonymous letters no connection lines to that being the see even if background information is that right mean it can appear that way but i would pose that mr all the objective twice regarding this type of information for him to object to all the you know again that would be testimony and then there would be background for hi object every time would completely i think break up the continuity of the case and i think you by objecting twice before he made it clear he didn't want information in list a that was personal knowledge and b the person testifying was on the stand so he had libby to the levy to objections and there and as far as i can tell you know by the time they came in he understood what judge she was going to order so it was superfluous waste of his time to get up an objective brief i actually i'll admit i made a mistake and want to attack the sentencing real quick i relied heavily on i believe a friendly and but obviously booker takes care a lot of that but i'm still going to attack in this way i believe that when the judge sentenced mr gary got seated he believed that he had to follow the guidelines and to whatever extent he says mr if you're going to seed of believing you had to follow the guidelines i believe you should be rich sentence with the honorable judge say having the knowledge that he's not held by those guidelines he can use whatever headlines are mandatory minimum there were mandatory minimums so i mean it's a two part obviously i think mr gunn stated sentence is driven by mandatory minimum in the statute because the guidelines being advisory doesn't affect the mandatory minimum a my impression in this case of the sentence was driven by the statutory mandatory minimum in which case there's nothing to go back and inquire about with preserve an attack on madhuri minimums which has been lodged in many cases we've got our own cases that say that the booker doesn't effect that all the children have to follow that here so you preserve the argument but i don't and i want to make sure you're not trying to say something beyond that  actually more than that five drug deals too and then and then he testified earlier that he didn't even know who he was what i really want to concentrate is and i'm just look through this testimony regarding what was  that he was a big time drug dealer none of that information came out on direct those testimony not a single thing as a matter of fact throughout the testimony throughout all of it there's not a single connection between i d r you can see that and this memo only one of the place in the the majority of the time use talking about that he has no personal knowledge and i think it's clear in the case that they gave it and it alternately that yes there you are allowed to have some back up yes the jury gets to consider that this did not happen in a vacuum but you don't get to say oh by the way this person was i want to give an example of i'm a person is on on trial for murder and they've maybe murdered several people you think they did and well we're going to an officers up there testify and say why no this guy he's really reliable he's a really nice guy he's not going to be here to testify but he told me that he saw this guy stab jake down the street and while he was stabbing you said i'm going to kill more people and then he slit his throat and had blood all over him now that's just back say why we started our investigation if that's a fair trial i think well it's not a fair trial and that's exactly what happened here officer small got to bring in this because i'll say mr gunn see there's a big time drug dealer he's been doing this for some time even do you know that the fact is he didn't know he was relying on information from other detectives say at least eighty percent of this testimony was in based on personal knowledge he was giving the summary of the case which gave information and i know it was late in under the guy is and i say guys of background enough for the truth of the matter sort of but when you have that kind of a luminous testimony from someone who's not there i say it's impossible for a jury to ferret out what what they were supposed to consider and what they were not supposed to consider well i certainly don't think it's a slam dunk that they would have convicted mr ag you're conceding and when you have what a well over sixty pages i think it's something like seventy pages of this type of information i don't think we can at all begin to presume or assume that the jury would have convicted him without the stiffer mission in any case this is obviously unfair to let the and let all that you know extraneous overall information hearsay into into the hearing of the jury i don't think there's any real i mean ultimately can we know we can't know but i think it's certainly realistic to say that the jury certainly would have had a different mindset had they not heard all the information from mr rudolph will have they heard not all of the summarization of the of the their decision would have been i think it's hard to tell that when twenty one for almost twenty percent of the information is impermissible before a jury i think that in and of itself becomes such a constitutional constitutionally impermissible trial that we need to start again i want to make sure i understand the point you're making about evidence that you say is inadmissible you have acknowledged i think that this came in for a nine year say purpose to show why the detective focused on on the defendant right is the objection that it was nonetheless overly prejudicial under rule for all three was is that the nature of the objection that too much came in or that there wasn't a balancing of value with the prejudicial effect absolutely and that was in my brief i believe a real lead on the second circuit case for that absolutely even if this was permissible under crawford that the type of information i can that he was a big time drug dealer and the volume of the information talk about his own credentials or to talk about you know the reliability of the informant would offer gonzales what i'm saying is all the information and there's quite a bit of it when you look in there regarding how he handled informants his again i think i think it goes too far it comes a time when when that kind of information is still poignant and still the luminous that i mean it would be different if yes we got information maybe even we got a letter which seemed to indicate that mr i may be involved in arcata transactions way none of that ever happened it was methamphetamines but the cocaine dealing in the marijuana dealing none of that was ever show that none of that was ever found it is house none of that was ever found on this property there was not the felony also certainly would have i mean the info if you read all the evidence regarding the meth lab everything the stricken see that said he was doing matches up with the evidence that was found all the tour leading at all and all and all the evidence that was found was spread out all over the place he could have been making it right then and there at that time and there was no there was no fresh methamphetamine made the civil figure and i hope and i hope i'm pronouncing that right there was none of that found it was found in solutions which comports with what he was saying that he was trying to purify it wasn't trying to manufacture method methamphetamine there were no ephedrine tablets found there was nothing like that in the house so everything he said comports with the evidence that they actually found but by then the jury had been flooded with this guy's a major drug dealer he's a big guy we got to get him off the street before he starts giv good morning grigory children for the united states to kill you in this case first of all the pill these brief was prepared by one of my peers have medical problems at the time and soul one thing that was not dressed defense and that was in the trial brief that it's trial brief that was in the opening statement that was in the closing statement and that was in mr curies own testimony because he did testify in this case but the other thing change this should have been pointed out to the court that this was we knew going into the case that this defendant was going to be trying to portrayed rudolph all the informant as someone who was course in him into selling the methamphetamine information actually there are several types of information that came in through the test of detective small number one the informant information the salt the so called hearsay the informant statements first of all i'd say that i can only find two instances where the detective detective small paraphrased what rudolf all had said in those only two in that in the record i'm not saying that there are only two but i could  well i'll get to that or i wanted to isolate these because we're talking about three different groups of information testified to by protecting small in the first one that i was i was trying to explain was about the informants so called quotations or they weren't really quotes but paraphrasing what the informant had severed done and the court was very careful the trial court was very careful to instruct the jurors that they were not to consider anything that rudolph it stead as evidence the case that it was only to establish how the investigation's transpired and why it transpired and that's the quote about it in that that relates to the letter also that letter was not that made it into evidence and effect and on the next page i have a question for you i don't understand why that information was even relevant if you say from the get go this was going to be addressed defense to me dressed implies i did it but i did it under coercion was there a question in this case about whether the defendant committed the crime rather than why you committed the crime or that that particular information was we were still in the process of showing how the investigation unwound and what was going on is fact in the record there and i think it's at pujas one seventeen and one hundred eighteen of the trial record is where it's found that then i say what happened next in the investigation i'm ask the second group of information which was providing background which and i've cited towards my my associate has asserted in the brief that that's proper background information as i think it's obvious that the government like the government's on trial for launching an investigation it doesn't have to justify what it's done and so help to set up as i read the brief period by your colleague we have the section of facts relevant to the sufficiency of the evidence any independent evidence of that other than the testimony of effective small of pain from the confidential informant is far as the main oh yes there's no other place in the record where and i can't i can't cite to it but there's know but but again this is you know that there are two reasons for that second group of information number one is background and i still think that's relevant to defuse the the duress defense because that i didn't understand what he meant actually about i'm not denying that i'm frequently confused but i didn't understand in this context  for rule seven zero two as an expert witness because he did testify in it he was he was going back and forth i think in his testimony which is common in these types of cases from seven zero one late testimony of any authority that requires that and i've never heard of any that requires the court or the counsel offering the expert testimony that has to be hashed to have this imprimatur in front of the jury that this is now an expert i  that's that's probably the better procedure and one that i'll follow in the future but it i never have in the past i've i've never i don't recall ever having asked the court to qualify explicitly an officer or an agent or anybody else as an expert i will say that in this case there was an instruction that explained what an expert was and what whether or not to the jury and well the standard had instruction for the circuit concerning the next witness but anyway detective small it wasn't all luminous and just bad if there were bases breach one of it and i still think as i started to say again that it was relevant in part to help diffuse this in explain to the jury what this was about what this duress thing was about because they they they had to know that they had a right to know a little bit more about this informant in about the investigation because we knew it was coming down the pike and it certainly did because mr  in fact testify about the details of the you know i don't miss letter diffused addressed defense it seems to me that that was overkill it's one thing to say we got an anonymous tip pointing at this fellow and so we pursued it it's another thing to read all the details of an anonymous letter to a jury and tell them don't pay any attention to those for the truth of the matter is sort of how did those details affected the rest of it well your honor the details there weren't very many details so it was probably one whole sentence or less in which the detective related that they got an anonymous letter that said he was basically track and controlled substances there were no other details there were no specific specific information unless you consider that information for the truth of the matter is sort of how does that how does it possibly counter the drest defense well it seems to me that if a defendant is if there's evidence exactly the problem i can't understand what this testimony is supposed to be about unless you accept what the tech is small said that he was told by the informant is true and this is why i look at your brief several times  certainly a conclusion so i think what what i'd like to ask you to focus on now is what's what's left of my think i think there is some problem with regard to some of the things that that came in with it prejudicial and as i go through here in your brief there's a good job of going to this part they found meth all over his his house there is evidence we should reversions and standard back i think your task becomes to establish or speak to the issue of whether we've got a prejudicial problem here well it then i think that the analysis becomes what is the evidence other than that and as the briefs said and as i would tell the court today the evidence against the defendant was overwhelming and i'd only the evidence schooling and from the investigation there were recorded conversations this this investigation went from working with the informant to the undercover agent who recorded the conversations received that methamphetamine from the defend manufacture methamphetamine and that's unfair than it was found the toilet that offended admitted later after being interviewed by agents that he in fact was manufacturing meth and setting and he admitted on cross physiology that what was going on there was a substantial danger to human life with regard to engage in human human life on manufacturing methods and then that was certainly but by the senate the only the only evidence presented concerning the defense theory that he was merely cleaning methamphetamine for his own use was the fence going to work and there was that argument can i ask you a question regarding the background didn't matter earlier when that question it includes to be i mean i've done a couple jury trials and juries are always reasonable but having considered the reasonable jury absolutely but what i had was you know what any particular jury would do it any time it's impossible to say and that's what i was referring to but to illegally reasonable jury absolutely to do without this other testimony of rudolph because all of that the c i it's reasonable there's reasonable doubt that in fact there was dressed certainly that and take that but then there's the fact that there was no pseudoephedrine there you can't make methamphetamine without that there was no there wasn't even any residue around the house on the table i'm not on the on the washing machine in the end the ship back there was it was no where you can't make methamphetamine impression of some of the recordings were played to the jury there were some that were playing i didn't tell you the truth right off the top my head i don't know which ones work i know that they're not here they're not before us  and i don't frankly to a large extent i agree with that mindset it what's the use but we never know what the future is going to hold and i think again strict if we're not lovers of the last of the state ultimately yes why would it make any difference though that the judge obviously knew that there was a difference between the guideline exposure and the statutory exposure imposed a life sentence but under the guidelines as i understand it imposed a three hundred sixty month sentence a lesser sentence but why would it be an exercise in futility to send it back and say would your judgment be any different if you knew the guidelines were advisory in me you can be likely that in a very practical sense you're right but i mean sometimes  opinion i remember saying there's probably nothing going to change but this was the way we do it so they were going to send it back to be done right and that's just the way it should be and this particular judge usually is pretty verbal about when he feels