arguments and then address the sensing issues if there's time mr ramos as defense relied on the constitution's guarantees that he would be presumed innocent and the government have to prove its case against him beyond a reasonable doubt the government's closing arguments fatal undermine these constitutional rights by among other things misstating the burden of proof shifting the burden to the defense and misrepresenting key evidence the government concedes that some of those arguments were improper and it describes other comments as at least should follow the authority recognizing that just as with any other kind of trial error the government bears the burden to prove that the error was harmless was a question is whether they present your statement that you know the defense needs to show or needs to explain or something and we've corrected by what the court said when it came in right afterwards and said no you get the burden of proof instruction from me well your honor i disagree that that was a sufficient cure for what the prejudice was because what the court said was you heard some questions i'll remind you that the government the defendant is presumed innocent and the government bears the burden burden and of the defense doesn't have to present evidence nothing about what the court said said that the defendant did not have to answer the got the questions that the government said quote the defense needs to answer these questions so i don't think that that instruction was sufficient to cure the  and then nothing the government did you know after that i think through the air either and i think that that's true with all of the errors that we're talking about this morning including the government's argument that that i think he gave the structures you know like if that was spoken again there was an instruction but i don't think it it did what it had to do the in steamy didn't struction was both sides have given their versions of reasonable doubt i'm going to point you to the reasonable doubt and i gave you which is in the written instructions i made a note that tells we tell me if i'm wrong or not that at least on five occasions the judge told the jurors about the reasonable  that also gave the jews a copy of the challenged there was no questions raised by the jurors that expressed any concerns or any confusion about it it seemed as if the judge made a concerted effort to repeatedly advised the it well i think it is correct that the read the a conscientious judge that repeatedly gave the reason without instruction but the problem is that she was a bit too cautious in directly addressing the government's conduct because she did not say you know that analogy they just gave you about driving a car it's nothing like that don't do that don't follow that the because judge did not say that that this case should be leave because of that that in conjunction with all the other errors and the resulting prejudice not by itself i do think that alone because because the because this was a case with hinged on reasonable doubt and because reasonable the burden of proof beyond a reasonable doubt is what the jurors used to gauge all of the other trial evidence that misconduct more than anything else infected the rest of the trial so i do think standing alone it would be written need to result that you rely upon other things to make your point i do i would like to have one more point about the potential cure so after the good after the district court made that statement where she didn't wear the court did not say that the government analogy was wrong just said you should follow my written struction what the government said immediately after that was and i believe the written structural said follow your commonsense which to me they weren't backing away from what they said before they were seeming to double down on it saying young common sense like you do in driving so and keep in mind this came out during the government's rebuttal argument so mr ramos never had a chance to respond to that in his own argument so so that's a significant error we've discussed the error of the  shifting of the burden which i think under this court's precedent when something when the when a prosecutor gets up there and says that the failure to respond to certain or explain away certain purported weaknesses of the defense case means you have to come find somebody guilty that amounts to shifting the burden but we get this all the time i guess maybe my bias is here as a visiting district judge from brooklyn and you know it's not unusual for the have to find this person not guilty because i respectfully disagree or are because certainly it is the the job of the governing council to point point out what they think are the strengths in its case and the weaknesses in the government's case but what it can't do is cross that line to say the defense needs to answer these questions because what that says is the word need is pretty unequivocal it's not ambiguous it means if they don't answer those questions and you have to do  i said which is convict him yeah but we get this type of stuff you know when he stands up you know he's asked whether he's going to say this or that and then the judge order magically says that you know in mind that you know the standard is not changed because of that defendant doesn't have to do anything whatsoever he said well that is what the standard is i think basically isn't that what the court said here no i think again i think that the court gave some kind of curative instruction befehl short and this is true when it came to the  third major misconduct which is misstating the evidence about where the drug transaction occurred and a gimmick in a case like this what a court should do is say that was wrong you did you do not need to answer those questions or that was wrong this is not reasonable doubt is not like changing lanes and it's and i can understand why the court you know it might be a will hesitant to do that but when there's such significant government conduct the only clear remedy is stepping forth and telling the jury this is wrong and need those those lesser limon instructions may seem like enough to us as lawyers and judges who deal with us all the time but for laypeople they hear the defense doesn't government didn't get up there and say you know what i mean a mistake that thing about laughing boy living in the back house and not the garage that was wrong here is the correct testimony the governor got up and said hey you know i was kind of rushed before let me read this testimony again a little bit fi and rule thirty two requires that any factual disputes that can affect guideline calculations must be made by the district court and there is no evidence that the court made them here for and this is particularly significant that just several months before the sentencing commission modified the application note for three b one point two to set forth a list of factors that are factually dependent and there's no indication that the the probation office did that the dischord did that and i think that that requires a reversal because this court can't make the factual findings on their own and then the second one the second sensing issue is regarding elocution and it's pretty clear that the rule thirty two obligates a judge offer and that just doesn't comply with rule thirty two there there has to be a person with patience i will note that the government the government says that well there was a person limitation because she used the word mr ramos rather than defendant or client but the use of the third person makes it pretty clear in the government doesn't dispute that if rule thirty two is violated then it amounts to a plain error a violation of rule two thirty two that requires reversal thank you very much good morning may it please the court jeff mitchell on behalf of united states i was the prosecutor who tried this case in the district court as we've conceded in our previous the analogy i used in my closing misstated the reasonable doubt standard and i also misstated the witness testimony the question for this score i believe is whether my attempts to correct the record during my closing and the district court secured of instructions whether or not those were adequate i like to start off by talking about miss ramos his testimony as i indicated i just misunderstood her testimony but as the court noted i stood up my rebuttal i told the jury that i had skipped some lines and then i read the two pages that were relevant to try to clear out the issue and then at that point it was clear to me that i did not understand the nature of my mistake so i just avoided the topic for the remainder of my but the mistake is not relevant because there was no evidence introduced at trial that showed where or which structure the deal took place and now the closest that we came to this cross examination and he testified that the informant told him that the deal took place in a back bedroom conversion kharaj but this was hearsay the gist of court said it was hearsay and told the jury that this was only being admitted to show whether or not special agent lopez conducted a thorough investigation so in even if the jury took this as truth we don't have any evidence to try to kind of line ups the testimony from special agent lopez which was that it was a back bedroom conversion garage to how this is ramos described it one as a house and one is a garage so we don't know if the back bedroom conversion crotch is the back house or the garage so even if the jury was confused about whether laughing boy lived in the back house or the garage it doesn't matter  as for the my government the questions that i had at the end of my summation as the discord noted this came at the end of an hour or so of me describing the evidence in talking about the elements that said government must prove and it was at that point that i turned to the defense very nigh argued that even if you believe everything that they say he still guilty of attempted he still guilty of conspiracy and then i went about trying to  poke holes in their defense theory and the way i tried to do that by using these questions as a rhetorical device to show that their theory was not supported by the evidence and halfway through my very first sentence i caught myself saying that these are questions i want the defense to answer and when i heard myself say i want i panicked low because it made it sound like i was making it personal i was trying to inject my personal opinion so i try to improvise on the spot rephrase mid sentence and i got change today and want to got change to need to and even though the didn't come out the way i intended i think what's important is not what i said but what i didn't say i didn't say that these are questions that they need to answer and if they fail to answer them adequately you must find him guilty but that's the whole the in from united states versus vendor in which held that it's common practice for prosecutors to challenge the other side too make them answer or address on comfortable facts and it's only burden shifting if the government takes a step further and says that it's only burden shifting if they argue that a failure to answer these uncomfortable facts requires a remember that the burden never shifts it's always proved beyond a reasonable doubt i don't know whether you did that here or they just let it go i indicated that the governor has the burden five times i don't recall a particular time i don't believe i don't think you did it would have been so and i understand that the district court came in and enter jackson again at the beginning of the recess and specifically referred to the government's questions and said the government has proposed questions but i just want to remind you that the fed is presumed if the government said it would go dry not permission perhaps i could ask you about the rule thirty two issue as i read the record the judge did not really focus specifically on the factors that needs to be considered to determine whether this should or should not be a mitigating role that just when there was some casual commentary they join i think just said well i thought the sentencing guideline calculation i think it was thirty and it seems to me that the probation apartments got it right it was kind of like not as express and specific as perhaps we would like it to be what do you say about that and why i agree with the court that it have a fabric or hearing or anything of that nature a little bit more specific about it here the judge sort of like i guess had a lot to do but sort of could have done a little bit more so but you don't think it's fatal to you i don't and as to the defense factual jacksons i believe there was only one that related to the role of justice and i was related to paragraph fourteen and the objections were minor objections and even if the course the stay in that particular objection to that paragraph the uncontested facts specifically addressed by the court and i let it go through the lawyer i guess and seems to be that is something what the district court should have done i mean i do this all the time but you know automatically i don't i agree with the court that it could've been just your client wish to be heard this was i am done talking to i now want to hear from mr ramos and everybody turned to mr ramos and there's a clear nonverbal response here that prompted the judge to say  missed around those says no i don't want to be heard we just have lawyers speaking for the defended without any colloquy between the two of them seems that the lawyers may have made that decision for the defendant there would be different if we heard from the defendant i believe the defendant you know did indicate something i believe was my failure to stand up and say you know your honor both the record reflect that the defendant was shaking his head you know you don't have that we don't your honor that is correct and it seems to me that's sort of important because i can share with you my experience is that a lot of times when you know i say reciprocally yes the defendant if he or she wishes to speak and they speak it makes a difference on my sentence and we don't have that here we don't have any competent level that he specifically said i do not want to talk and i think that's what troubles me and i think that you know what he should have been given the opportunity if he goes back for that reason how that the roof thirty two should be put that in the soup as well y one of the reasons why you didn't want to talk because i had just finished describing three separate incidents of serious violence but if it does go back then yes i mean it goes back to just as a judge of the the right understand i know that the court can consider mitigating factors that happen after a sensing but i don't know if we can consider aggravating factors after the sentencing date but the court could consider events subsequent to the se thank i just want to make one more point on the government's conduct issue because i think at this stage the government still isn't owning up to what it did and in particular talk about the government's argument that you know that the location about the drug deal wasn't all that significant because of what the agent said or whatever but this is on page four twenty six this is the government's argument of the actions of record it says you saw sherm pios walking into the garage not the back house there's more information that  not walking into the back how she's walking into the garage to make this phone call and then says now here's the conflicting part ellis ramos and the defendant's mother said laughing boy went to the back house and that's when the government then misreads the testimony where the testimony is actually he rented that middle grudge to make it misleadingly seem like she went of the back couse and even now the government saying like oh isn't this a mistake it wasn't it wasn't significant but they're making it significant they're the ones saying hey she's her boyfriends in the back how she's going to make this critical phone call in the garage case closed so i think that the government's conduct is is there in the district court i think it's continuing and therefore i think the court should not only reverse the convictions but should also grant the relief request in both the opening reply brief which is pursuant to could julian should remain for a hearing to find out whether dismissal with prejudice is actually a sanction given the