know honors mr sosa was convicted of drug trafficking and sentenced to three hundred sixty months in prison based on the word of three drug trafficking convicts whose credibility was the key issue for the jury the government polluted the jury's credibility determination first by having a federal agent testify that mr sosa fit the profile of a drug trafficker of a typical drug trafficker and of a wholesaler distributor in a typical drug trafficking organization second by improperly bolstering and valjean for this three drug trafficking witnesses and third by using the out of court statements of a federal agent in violation of the confrontation caused these is tape each level of it is tainted you know as you just named the three ways that you think the evidence is problematic that that there's no other evidence in the record other than that of the the but the the code conspirators and also the case agent and that is that your position so such that there isn't a clean way that you could say well this under plain error that that this should be a for your on a friendly question yes your honor there's other evidence in the record but i don't believe there's other evidence a record that shows that he was a was involved in the drug trafficking activities in other words there's evidence that his mother patty's picture was on his facebook page that doesn't make everybody has their mother on their face just like you are getting the free yes your honor that's correct so other than evidence that's tangential i guess we'd say yes it's my position that the incriminating evidence against him came from the word of the or galvanic and sarmiento or linking him up with the him well there is the improper testimony to violate the confrontation clause and there's improper expert testimony your honor and while we're talking about the question about no evidence in smith which was a val case this court looked at the value of the error and say that even though the evidence is legally sufficient it was not overwhelming and this court reversed on plain error review so it's not that there has to be no evidence of guilt it's just that the evidence the improper error so tainted that the jury's consideration that it calls for a verse on plane or if you as this court well knows a federal agent can't testify to profile profile evidence of a drug trafficking organization and then testify that a defendant fits that profile and it can a federal agent can testify that the to the functional equivalent of a defendant's intent or criminal intent and clearly agent bradford do that here he testified to the typical drug trafficking organization in the rolls in it he testified that mr sosa fifty profile of a wholesale distributor but so you're right that there was some improper profiling this case that was not objected to a trial was it that's correct your honor this is only subject to plain e his names he didn't his name wasn't on the money gram he didn't have a job he his conduct with common among drug traffickers so i think the air is plain and i think it clearly affected is substantial rights i mean all three  drug trafficking witnesses had criminal records some substantial criminal records all three were drug long time drug users or sellers all three admitted that they had lied to the agents and li upon their arrest one of the lies i think is really key is when both galvin and sarmento are first arrested they both tell the same coordinated line that they got the drugs on international boulevard at churches fried chicken and that sosa insta blame leaving out lura and covering up deserves culpability as the main actor in all of  this and so you can see that they're coordinating their lives from the very beginning so they all told lies the whole defense was this terrible trio was lying and that credibility was the lack of credibility was the defen and the profile testimony gave the jury a conclusive opinion about guilt it said he's guilty it said he's a drug trafficker it's a he doesn't have any property it says he didn't send the money grams and so he's guilty which  is really horrible because it means if you're innocent you're guilty right so it allowed the jury to ignore the inconsistency and they told the jury that he fit the profile of a typical drug trafficker and the prosecutor used it in this rebuttal argument the last thing the jury be a miscarriage of justice because what it did was it took away the jury decision on whether he was guilty which is the key constitutional right he had it told the jury this person is guilty he's a typical drug trafficker and don't worry about all this other stuff and so the fundamental unfairness the miscarriage of justice the the injury to the integrity of the proceeding is to a fundamental same fundamental error your honor it's that these three witnesses provided all or virtually all of the incriminating evidence against mr sosa the jury had to determine to government saying we said we would recommend a lower sentence for you if you told the truth and in fact we did which infers we think you told the truth and our truth teller but invoking a premature of the district judge because and in seems to suggest that this kind of you know pointing to a plea agreement noting that you're supposed to tell the truth that's not improbable string yes your honor i am not contending that a prosecutor cannot especially here where we did slightly attack the credibility of witnesses in opening statement and so the case law says you can introduce the plea agreement and ask the cooperating witness about it and i'm not contending that you can't do that what i'm saying is that the behavior the prosecutors in vocation of the truth telling provisions of the prosecutor's  the courts in premature on truth telling is way beyond anything that's permissible under the law so it's not the agreement it's it's and you did tell the truth and that's why you're here and you've got to get set yes your prosecutor can go into it it's the use of it it's the it's just i mean did you notice no balls during by the process the prosecutor got his own knowledge of the truthfulness and the judge's knowledge of the truthfulness yes your honor and it's even beyond that because with i think it was laura it's not only the prosecutor and the judge but then the prosecutor says and your lawyer sitting here in court today isn't he and your lawyer told you the truth so is a lawyer who had been sentenced you've got the prosecutor watching of you telling the jury we've got the prosecutor watching over you over the witness we've got the judge watching over the witness and we've even got your his own lawyer here watching over him so and to to fill in the blanks so there's no way he's going to tell the truth i mean look at these people making sure this and with regard to the third fourth prong your honor i think the third and fourth problem for all three errors is the same a fair trial yes your honor it's the again it took away the jury's credibility determination because it's telling the jury look i have determined this witness is truthful the judge is determine this witness is truthful with regard to one witness the lawyer sitting here making sure he's truthful so again it affects the jury's credibility to different determination thinking well if they all think they're truthful who are we and i will know they're there was a jury note after two hours which shows would show some doubt about what we should do in it if it's not conclusive it says can we convict on one count not the other which shows i don't know if that shows whether they want to do a compromise verdict where they thought one count was sufficient one count wasn't but at least it shows that the jury had enough doubt about something to send out a note and ask a question and with regard to the third area your honor it's the same third and fourth prong agent confirmed that patty was in mexico and was dealing drugs and then an agent bradford says this is corroborated what i knew and this is the transportation slot i had for patty so it's really interesting this third there are links with this with the first air because on the first error you have engine bradford improperly saying paddies the supplier and then to bolster that he brings in the out of court statement by and saying this fit exactly with what i thought about patty and his improper testimony so it's very interconnected and there actually one improper or one error is actually bolstering the other  your honour's as i said this these errors alone require reversal but together really took away the jury credibility terminations from mr sosa took away his right to a fair trial and affects the integrity and fairness of the proceedings and with that your honor i ask the universe is convictions thank you government's position the profiling questions or not playing air i tell you what i think this is such an interesting question i think it's very close and i'll tell you why there's lots of cases from this court that shows it's improper we agree with that i think it's a little bit different there's two things that come to mind to important considerations is the witness and the purpose if the court's jurisprudence is that any time there is testimony about the drug trafficking organization and a witness tells you which slot every person was in and that's error then we will concede here what i will tell you about the cases from this court that i think are interesting and wires is just a little bit different is number one the witness in question all the cases that i've reviewed and that we've put in our briefs have to do with an agent being called for expert testimony to talk about the business model ours is a little bit different agent broad for was actually the investigating officer in this case he was the very last test last witness to testify and everything he provided was his own personal experience his own investigative things that were told to him by all three witnesses so i think that's a little bit different versus calling an expert witness just to say this is how these organizations work whether you have an investigating agent saying this is what i've learned through the course of my investigation the second thing that i think is very important is the majority of those cases are drug courier cases a little bit different so we're talking about couriers who actually have the drugs on their body they're contesting knowledge of where they had it whether they knew it was in their car the purpose of the testimony is very different as well we don't have a c we're talking about a different person in this pyramid also we're talking about each player's part not the specific person's knowledge of the drugs and so i think when you think about the purpose of the testimony in the person giving it it's a little bit different and the reason i hesitated to concede error completely is i don't think there's any cases that are unique to our situation where you are is very clear in the facts that it's the investigating agent giving the information to someone coming under as an expert tells him about an investigation so i think that's a little bit odd for us to draw this line that this agent who talked to all three witnesses he's been on the case all this time that he can't get before a jury and tell them what he learns actually is more problematic gauge and from other people but i think it cuts the opposite way that's interesting i understand your point but i tell you what's different about this case i'll take that he doesn't say it doesn't say it's his opinion what he says question is what the players what you know from your investigation he's repeating what those three coconspirators told him i don't know that that's his opinion he's saying based on the evidence we know this is what lera told me this is what sir mentor told me this is what calvin told me including i'm going you're saying in a you know a fraud case someone can come in and say oh i investigated for three years and that defendant there is guilty of running a ponzi scheme i think there's a slight distinction but i understand that concern and if that is the ruling from this court we would could see that ere i just didn't feel like there was enough case law specific to show us where is the where's the basis of this person's information what is the answer to my question which was because the government will leave there was an error here or not would you do this tomorrow again do you believe there is an error if this court says no then of course not and i'm asking as you stand here in court today having read this  record and read the case law and being very prepared for argument what is the government's you've made some nuanced arguments well what is the answer to the question the answer is at this point no i would not advise my prosecutors to do this again because i think it is on the line but i would say we always need guidance from this court if people are doing the best they can i don't think anyone was trying to get in evidence they shouldn't i think that they believed at the time the evidence being presented was based on that agent's personal knowledge that seems like an ok way to present evidence and people have always thought that should they tie it up no and i think i cited some of those cases that are on the third prong that say look the jury probably is going to tie it up together but it isn't your job to do that and we do understand that we take note with that i'm just pointing out it would be better to have a little bit further guidance on that from the cases because cases are very pointed about putting an expert testimony without giving you the context of where it came from this is not something i would push right i mean that goes to he was going to be he was going to be acquitted i think that that's what the tenet's going to have to show plain arius his burden and i don't think that these small bits throughout this record of twenty five hundred pages nine witnesses a five day trial show that he could make that pong think he actually has to show he was going to be acquitted acquitted i think it has to be that the evidence is not strong enough to say that he would have been committed to  e otherwise ok under our case law so what what what case tells you that he must come in and show that he absolutely would have been acquitted and prong three rather than as i phrased it so my understanding is that it's a reasonable probability that the outcomes different so i'm still probable to that that there's a problem that the evidence is not as it's not strong and you can't say that he would have been convicted it's less than it's more than harmless but it's not one hundred percent he would have been acquitted as i think either way they haven't shown what evidence would have convicted him other than the other tainted allegedly to every single witness so obviously we have ones of evidence about that but tying this defendant to it i know all three cooperators implicated him but you know the jury is instructed as you all know you have to view cooperated testimony with great skepticism is there any documentary or other non cooperative testimony that puts this defendant in a spin most of the documents are just to cooperate the coconspirators so yes the most damaging testimony about the defendant obviously comes from the three coconspirators and the agents so yes but i think also you don't my understanding is even if we're thinking part of their testimonies improperly bolstered which i would submit to you it's not but i don't think that means we don't look at all of their they say the thing about the bolstering i guess that bothers me a little bit is this was a free for all credibility on both sides and so they opened the gate in their opening by saying everyone here is a liar these guys don't pay child support their drug dealers you can clearly the government's clearly allowed to get the plea agreement into evidence i mean the government was clearly allowed to ask some questions about doesn't a plea agreement you have to be honest blah blah blah but i have never seen the show any other case that allowed this extent of questioning on this topic in particular that brought in the judge's sensually blessing the truthfulness of the would i don't know of a case offhand that talks about the judge bringing in the evidence there are several cases i put in my brief about them repeating and i have talked to the prosecutors about this i'm not endorsing this is the best way to practice and i think they understand that but there's also this gauntlet thrown at the beginning and this is all about credibility and both sides are doing it and what bothers me a little bit about us just saying that this is error is there's a lot of evidence right before the bordighera record where they're all on the record discussing what's going to come in the discovery the defense attorney specifically says his intent is to cross examine them on these plea agreements he's not going to object because that's what they're doing they're doing this credibility and so i guess it's uncomfortable that one side can go so far the other can't respond and they are it's not an equal playing field in that regard the whole i want to say well if they can do something we should be able to do it you actually have more responsibilities i understand that your honor and i think it's it goes back to scope that if there's an invited spoke about credibility that we do have a right to correct that absolutely but not using the prosecutor valjean and not using the judge felt yes and i have discussed with them that i don't think that's a good way to go that that have been put in there but again because they made this indication that they are just going to cross examine on credibility it's sort of goes into well every trial it is but it's a strategy so th think it's more than most trials i've read i will tell you that i'm not saying it's the unique most unique credibility case but if you go back and read the opening and then throughout the trial he even said it today the terrible trio it's it's rampant with this these three guys are drug dealers liars they are implicating him they're lying it's really lera it's not so instead it's all over it every page has credibility truthfulness and justify the not as far as they went i would agree with you there but i do think  enfield practitioners that's where it gets confusing and that's back to if you don't object we're not stopping each other we're not having a conversation about the law and the judge is not making rulings that's why this plane error is problematic that if both people are going on with the trial and this is the way where they want to try it we don't have any objections we have no idea what your theory is but you got to stay well within the lines so that you don't have all these come here month after month and  so i don't i guess i understand the court's concerns with the bolstering but i don't know that that necessarily negates all of the testimony of the three coconspirators and they gave such a wealth of information and not all of it consistent which i think what leads to their credibility which is the issue in this case but this was such a big design and what they had said consistently between you know oscar sosa told me to do this tell me to call his mom and then you hear than the next post c spirator saying the same thing on different drug runs and so the consistent theme shows what each party was doing in this conspiracy and so i think it's hard to parse out every single argument they make as being a family member he put the mother in mexico and that she was deported which cooperated their story that they knew her from mexico they were getting the drugs from her they also had obviously the facebook records the  money gram with the money and all the parties and also the bus tickets there's a lot of record evidence that may not directly implicate the defendant which we don't have to have direct evidence but all of that cooperates everything that they officers were given from the co does that answer your question to what those three people said and i guess i just i see that there are problems here i don't think that we're saying that there aren't but i don't think they're to do to the degree that we're not looking at any of the testimony provided by the coconspirators because on a few pages out of this twenty five hundred page record that there were some statements that maybe went too far i just don't think on the third prong that that gets us there so that's my concern distinguish are other cases other cases with amount of evidence seems to be a big factor in cases as well as the jury charge we have to remember the law says that they've read it and it i pointed out so many things in there about the sentence reduction the personal advantages of witnesses they've been charged on the law and they know the law and we shouldn't presume because there are a few instances where possibly some questioning went a little too far that the jury's not reading those instructions and i think that's really important i think it's hard to ignore that in the wal of evidence these are hard cases conspiracy cases are hard and i think i go back to you know we are an adversarial system and we don't always know what's going on down below we can monday morning monday morning quarterback people but they are expected to object and be a part of this trial so that we know what's going on what piece and if a defense attorney takes a different tact it to not object to certain testimony but cross a witness i think it's very hard to automatically assume error on the part of the government terms of directly tying the defendant in terms of phone records but that sort of went to our theory that he wouldn't have that so i think that kind of cuts both ways too is not evidence is actually evidence in this case we do to the jury and their right to believe those three people all the other evidence is what cooperates and them and that is the weight of the evidence is up to the jury and for them to make those calls about the three people then you couple that with all the records and everything else that cooperates what they're saying you know i just don't know me two of the coconspirators had been sentenced at the time of trial and one had not and that is the one that i think possibly there were more questions asked so maybe they shouldn't have been but that defendant hadn't been sentenced yet so that's another just learning lesson i'm thinking about you know the jury had the opportunity to know the sentence of the other people they were charged on how they could think about that in their sentence compared to this defend it can you comment on the you what this is what i think i think when you look at confrontation clause cases they talk about the primary purpose why the evidence was given to see if it's testimonial and i will just tell you i think it is on the line it's a very small piece but i will say i don't think the evidence it's not you know when you talk about here saying confrontation it's not put in for the truth of the matter to prove she's involved in this other drug situation there the prosecutor even says on the record a few pages later if you look this was in response to their argument that those three coconspirators don't know patty and bertha and they couldn't prove they were in mexico so not in the in the best way but we're putting that evidence on to show hey here's the evidence she is in mexico and this is what she's doing i don't think it was to prove she's still trafficking in doing all that because we didn't explore that in the questioning it was simply like i said i think it's three or four pages later where she says well he opened the door and we're responding to saying you said they they can't verify that she was in mexico but it's saying she's a drug dealer she said it is and her she's the mom ok well that's why i don't by association as it is yeah that's why we have the profiling problem that i understand and those things work together  i had looked at a few cases that talk about you know background information specific information or courts were finding this isn't an error and that actually had to do with the defendant like cooperating a tip background information about a defendant and i get the guilt by association but this is this has nothing to do with him and it's two years in the future has nothing to do with him or this case it was simply put on to show this woman is in mexico and trying to get rid of her drugs which horrible rates with the coconspirator said honor just briefly i don't think the court has my argument i just want to point out just a few things first of all the top of my head on the third problem of course it's a reasonable probability that it affected the outcome for my recollection a reasonable probability is less than probable cause and in my memory i get that from either cause vs whitley or cases that cite cows vs whitley that it's less than probable cause so that's even stronger evidence in this case but i believe there was no other evidence that the defendant knew that the of the hidden cocaine and this court reversed on plain air so that's a case where there was no other evidence except of course the defendant's confession and and the cocaine that was hidden and this court reversed on planar and the interesting thing about prescient in response to counsel's comment about the jury instructions  this court on reversing said that yes there was a general jury instruction that is served only moderately to reduce the degree of prejudice so that's a case that reversed where there was an inch jury instruction that went to the air  and finally i would just say that it's clear that agent bradford's testimony on the out of court agent corroborate he says twice at the beginning of the testimony at the end of the testimony this corroborated what i knew your honor for all these reasons i request that you reverse mr sosa's convictions and remain for a fair trial thank you very much