hear arguments and i next case united states versus opinion it is a conclusion of the guilt of the defendant yawners how does it get any worse than this this is a severe read severely prejudicial statement made by the worst the worst money is i very prejudicial statement and another way it could get worse is if you're in a slim case the government's proof is not very strong that here don't we start off with the proposition by evaluating how strong was the case and we have the bombs we ha updated witnesses we have the video we have a car tracker we have large amounts of illegal substances that's square one as that and then we assess the comments that you leave certainly yes your honor and that is definitely history of the case is definitely a consideration and it did agree that it is a pretty powerful case there as far as the evidence that was presented they were so egregious that turned the whole case on its head he would have been guilty on all counts or it could have been that they were think about all the different all the different charges and maybe the skull that way on that one but just everybody is watching the court trial the jury the marshals the court reporter the the clerk of the court the translators defense counsel and even the judge he said they all thought they responded to that because in the prosecutor essentially said well i was sitting here i don't and i thought he was killed so it was that's with a total corpus talk talks about the whole time is the response it's not about what those said it's the it because defense counsel kind of opened the counsel and then he says in this setting where he responded on this right there in the prosecutor want although error was not plain error and then it was on by say nevertheless we conclude that the potential harm from this was was by the jury's understand the prosecutors countering the defense counsel's repeated attacks that's what it's all about and that at the very end of their analysis all they vary and then they finally say kind of in passing finally the overwhelming evidence of the respondents intend to fought apco and spitz mcfall certificate it's the government comment wasn't her but not does not claim that any one comic standing alone was enough to reverse the fiction that was all about a whole bunch of minor errors no which were like this and even then this most recent case that goes on to say the court must weigh any improper comment against the strength of the evidence against the defendant but they don't want to say that the prevalence and degree of improper statements in a trial can affect prejudicial notices how long was this trial  left it is plain to see that every improper statement does not require rehearsal we know that that's that's pretty obvious i think you can compare get away with saying that less egregious statements were part of the court to weigh the strength of the case against ladies and gentlemen the fit is guilty everybody knows that especially followed by the district court judge is complete silence on the matter and the prosecutor's other statements that there are three people in the conspiracy not heard from any of them which says you have not heard from the defendant is addition to that not nearly as reached you know what i thought when i read that statement yes i really didn't key into that it's a comment on the defendant's silence that i really didn't know what that statement which that when you put it in context that it could have then been in response to what the defendant had said or the defense counsel had said in the closing argument given they have the defense only to look back that we don't  leave the defendant's guilty believe me i didn't don't didn't didn't see the defense counsel go into the fact of the amount of evidence and there they're saying there's more but we didn't hear from them not to my recollection are but you could be right i in conclusion of all this there are there are statements that are so egregious toward a reversal especially when it is a statement is the conclusion of the guilt of the defendant we've seen other statements ha been reversed that they say this witness is lying to this witness should have said all this defendant should've said i was exculpatory statements when he was arrested and things like that but this is the ultimate issue this goes after the entire case it's the defendant is guilty at the end of the case in front of a jury that doesn't know anything much about wall and they're told that everything is things they're guilty we should not allow all the prosecution get away with that and they really thought their case was so strong it really was so strong we don't know what went on the jury room we don't know what government attorney have said ladies and gentlemen and you've seen the evidence the evidence strongly supports or it compels a finding of guilt the government could have said that it as long as it would that would have been related to the evidence and i and he's saying you know what's the one thing everybody in the courtroom has and common they've all seen the evidence and so i think that's what he's trying to do but he didn't do it and so that so it's an improper comment i don't think the record suggests this was a planned comment because it is this isn't closing this is an opening statement this is when you're responding to what you've just heard so i think i don't think the plan but i don't think that's something that the court needs to get to on this record i don't think the record suggests with all that  the comments were limited in scope in nature it was this line at the end of rebuttal after a seven day trial and as i mentioned it's when all the evidence is in and you can see that it wasn't invited in any fashion i don't think it was in fashion i know i mean i think to the extent he was saying my client's not guilty he's the type of editor that doesn't invite us saying he's guilty in that way but it was limited in scope  nature was this coming in of rebuttal of course in the trial he was acquitted on count one thirty eight this comment was a comment he's guilty as to all counts if you're going to read as a thing it wasn't look at this one count he's clearly guilty on that count it suggests that he was guilty of everything but the jury acquitted on count one thirty eight which is incidentally this it's unable to twenty third of the communication facility with a gentleman mr maya who did not testify at trial that is what the second comment was in response to the defense counsel during closing argument repeatedly noted you didn't hear from mr mind you didn't hear from mr mouth and so this was a response there are a lot of people in this conspiracy and you didn't hear from all it wasn't a comment about the defendant's silence and this court's precedent jefferson says if there's a pl instructions and the fact that we did really have overwhelming evidence here this wasn't like the rios case where you don't know if the guys at the bottom by or not you just have two brothers saying was this is occasionally first of all we have a drug stop where we've got a half a pound of math and a kilo the video and i so you have these events where they'll get a call and you bring this stuff over we see the coconspirators on video showing up at the place of the people who've called they leave we get another call about how it's announced  short and so all of these details about all these different events are so consistent that they suggest that the only way that could be so consistent is if everyone just happens to be telling the truth you have the the trip to liberal kansas that the defendant went on with his wife one of our record on appeal one forty four three one one seven and so this was an improper comment but when you take all of those things together that he has not met his burden and it's his burden to show that problem three has been met i don't think there's any case law that says we have this per say standard where something is so egregious that we don't even do the prime three analysis in fact that's what young said this court was doing improperly beforehand was not looking at the record as a whole and yes young talked about invited there but only talked about in the context of this is one of the things that you consider in the record to see if this prejudice it also talked about look at the overwhelming evidence and it talked about you look at the nature of the comment and was this a comment where the prosecutor is suggesting he has knowledge outside the record or not because it wasn't in young that was another factor in the favor this is again an outcome of the recent test and we have knowledge outside the record we're not saying the judge knows he's guilty or i know he's guilty we're saying although unfortunate we're saying everybody in the room knows he's guilty and again what does everyone have in common that ensured that before unless the court has any questions to see them thank you and what happens if they do it again