good morning counsel good morning can young federal defenders on behalf of mr sanchez there's obviously a number of issues here so i'll begin by addressing the denial of the requested adverse inference instruction on the data mr sanchez is a rest his vehicle was driven to the secondary inspection area and search for narcotics by agents and during the course of the search they removed much of the foam cushioning from inside the seats when they retrieved the cocaine they failed to preserve that foam cushion prior to trial mr sanchez moved for an adverse inference instruction due to the destruction of evidence which the district court summarily denied in a minute order without performing any reasoning or analysis adverse inference instruction was warranted in this case in particular for two reasons firstly even talk about only the district court it was done primarily in the context of russ butler's testimony that request for an adverse inference instruction but well that was that was some worry to me because seems to me your argument now to change is to foam but what i saw in front of the district court didn't even emphasize the full mori what we had was we have a chair that chairs  taken apart because there was evidence in there of the drugs and so they got the drugs there and then they had the chair and it still was in the same position it was there wasn't any it took the full amount when they got the drugs and the district court was even told about the foam and so now i want an adverse instruction well i believe that request i mean what's my standard or a view on that the analysis at all by the destroy or it's all you're really saying is your biggest deal here is in that the district court has to do explain its reasoning is that what we're really about here if they'd explain if he explained his situation here we were worried about whether the district court was right and what we did is we took it and we said well i don't know whether there's a pay suit foundation here for the district court to make this but we can make it and there's facts will give us what we need yes the court could for the first time determine what i worry is that we've got an abuse of discretion standard we have presented the same things to the district court that we're now presenting to me and i'm supposed to honor of use discretion standard overlook what happened and say that was bad he should have given an instruction well the motion in limine a papers did note that the seat was not in the same condition as it ileum of think the front part of the seat the photos of the front part of the seat and there's no real change there's no real difference there's a slip there and there's no there's nothing was argued to the district court or even argue here that any foam was left out of there that's where if he backed up against it you know it would have been hard i don't understand the i don't understand how the judge would know that because some foam out of the back was left out obviously if foam was never mentioned even though anything but well the phone just saying that the seats are not the same condition doesn't tell me anything well during the course the trial it was discussed that there was foam removed and russ butler noted during his testimony that there was foam strewn around the vehicle and he was actually he talked about on cross examination this is only for this is that it's true it is later yes he talked about on cross examination about how he was trying to reconstruct where which which bone came from which seat and whether it was the original foam or the altered foam let let's take from it let's let's take your point let's assume for a moment that this was there don't we look at this on factual inferences or other demonstrations and kinds of proof allegedly lost to the accused the probable of fact on the jury from absence of the evidence including dangers of unvetted speculation and bias that might result to the defendant if adequate presentation of the case requires explanation about the missing evidence and so as to the first factor the central of the of the evidence of the case and the sea was pretty important to the case and it was really important for two big reasons first it came up significantly and ross butler's testimony there's there's a moment in a lot of criminal trials where crime victim takes the stand and is asked by the prosecutor do you see the person in court who committed the here he's he's taking the stand he gives his opinion about the seat and that it would have felt harder lumbee to anybody who was at least five feet tall one hundred ten pounds and then the court asked mr sanchez to rise and mr butler's asked does mr sanchez appear to be at least five feet tall one hundred ten pounds and mr butler says yes and it's almost like an eyewitness identification it was very important to the government's case and it was also central because of what the government told the jury to do during its closing argument and during his closing argument the jury told the government told the jury to experiment with the seat alliterations and the government counsel said ladies and gentlemen he knew first that cocaine was in the back of that seat right there that seat will be available for you during your deliberations i invite you to feel how much padding was left i don't buy you to have one of your members sit down in the seat and have the other jury members watch in the back what happens to the springs and then again in its rebuttal the government tells the jury they question mr butler's examination of the vehicle if you question mr boyle examination of the vehicle if you question mr butler's examination of the seat anybody can examine the seat do the test agent middleton did sit in the seat feel the seat look at what happens to the back of the seat asked to come out and view the cocaine asked to feel the cocaine feel the cushions in the seat feel the cocaine see if the cocaine has the same softness for lack of better word as the seats all the evidence is available to you ask to see it but all the evidence wasn't available to them because of course much of the phone cushioning was removed from the seat during the course the search and not preserved and so it went centrally to those two points the introduction of the physical driver's seat and rust butler's testimony is this for our purposes is this your best case is what you want to focus on is the  testimony which is a obviously a freestanding issue and there's two parts of this that the district court failed to perform its gatekeeping function and then even if this court conducts the rule seven a two analysis for the first time on appeal that his opinion wasn't the product of reliable principles and methods and as far as the first part of that the failure to perform the gatekeeping function the request to exclude butler was an item in an order to argue this issue to the district co we filed a motion eliminate to see liberals emotion but did we ever have an argument at there was no discussion at the eliminate hearing about this the particular argument in the motion but it was filed it was presented to the district court the district court issued a minute order denying that going so that all we've got really had seemed to me was a motion by you and a decision by the discord in the minute in theory that's correct well i guess i'm having a tough time when there was no argument about it are you saying the district court's minute entry wasn't enough on a motion in limine e i'm trying to get to the case you're go being really doesn't i think well i i know it's your case so i kind of wanted to talk about a now both of you it was our case that i don't think it really gets there ok i mean my worry is there's a motion in limine me i sat on the trial court we got another trial judge right over there you see that every day we get a motion in limine nobody ever talks to us about it so you go through in the minute entry and you make your decision it's a real hard for us to say oh boy you i mean if there had been more said i can see that the good ole judge should have said something gone through the analysis and put it on there but was all of that happened i'd i'm having a tough time understanding why i didn't go through the they just didn't put it on the in the minute entry and if i go through the minute entry or the analysis now i can assume a lot of stuff which you won't like but that's the thing that worries me i think part of the reason we're left with a minute entry and so this court is left to speculate did he find what was the basis for concluding that russ butler's testimony was the product of that all through here and look at the advaita qualifications of the expert i can go through and see what was in the record that i could see the resample get in but i'm not the gatekeeper and that's the problem i can make all those things and again you've got a different issue here than we really had in our other case it's obviously with barry bannan was a little bit more nuanced where there was an about face with the district court of letting the plaintiffs actually get in without it why don't they just right but you know there was similarly no i mean it is like where you're going to say no you can't come in or yes you can and then you change your mind then it seems to me you've got to put some on the record right here we got a motion in limine and that's it and he the morning coffee for the united states the issue of the foam and the seat i would agree with judge knesset that that issue wasn't presented to the district court in the first instance there was a motion to exclude the seat and then just in general because it was in a different condition and then on appeal the issue was adverse inference destruction instruction and  unduly prejudicial under four or three those are that those are the issues of fame and was a seat in general was not really until the reply brief that we get talking about phone i'd also agree we've got a lot of different evidence in different forms there's the seat the actual physical feet which i actually wish i had gotten i'm not sure it still exists but it would be an interesting exercise that to put it here in front of the court i'm sorry i didn't did a lot of trouble for not good reason i mean he's allergic to phones to me and i only put in an adverse jury instruction if there's destruction of evidence i'm having a tough time seeing where there was a destruction of evidence the condition of the seat was altered that was it that is there was no it no absolutely no evidence the government did more than take the take the pull me out of it at best themes i have i think for the court and for my brief is and what judge barnes would say repeatedly is when we have evidence we leave it to juries to make decisions about the evidence the jury knew that that was and exactly the same condition as what it was everybody was on board with that people argue that they look at the evidence that's why we have juries make inferences from that evidence so on the phone since we cut him off before even really got there and i want to ask you a little bit about what the prosecutor said to the jury why didn't the prosecutor volunteer evidence outside the record in terms of what gangs do seems to me he did i would suggest no you are and why what evidence do i have of what gangs do except what the prosecutor told the jury spoke for the first thing i will do is disagree with you on a little bit about it being again i don't think we're gang was ever used there were some talk about if you're involved in drug trafficking or are i drug dealers do now what evidence is there up side the record of what drug dealers do the what the prosecutor did was argue from evidence in the record and what he what why i would suggest that what he did was proper i would hinge my argument really the main thing is he testified he was cross examined extensively about the meaning of this coded language he said it meant what it seemed to me on the surface but once he got on the stand once he denied that the jury is entitled to infer a opposite and so in essence the prosecutor as cross examination often does is making his closing argument through cross examination the defendant denies it he gets up on redirect and says no it means what i actually said it and that but then it's this is kind of a colloquial expression it's katy bar the door as far as that evidence is concerned the jury can infer he's lying it means coded language as the prosecutor was off asking him so that all of that doesn't matter if it's coded language why wasn't there an expert because it seems to me that what we're really doing is we're saying well if it's coded language the jury either has what the defendant tells them or what the prosecutor tells them because there's no other evidence but there's the evidence of what's actually said on the calls themselves which i've argued don't make sense on their own terms when when the wife says i just got fifteen hundred for the thing about the dogs and the explanation is oh that's because we sold some dogs for sun well she would say i mariel sold the dogs well that connects up with he got he got popped so to speak by the dogs so there's other evidence that the thing doesn't make sense on its own and then there's other evidence of facts in the record that make that code so to speak intelligible and i should also point out that just burns at the wall twenty nine motion even before the defendant got on the stand said those you know calls were coded language so i'm suggesting that there's evidence on all kinds of levels that enable the prosecutor to argue that as the evidence the calls themselves how they put up with the record and is proper really but i want to argue about what what evidence is there what is there in this record which would say what the prosecutor was telling the jury was true except the prosecutor telling the jury you know on the teams at that point the prosecutor gets on that witness stand and says this is what you're hearing this is the way it goes i'm knowledgeable about all this and i'm telling you this is what you're hearing well your honor i'm glad you asked the question that way because that's exactly what the prosecutor didn't say that would be a problem i've done a bunch of these cases and i can tell you that this is what it means that the prosecutor references in the calls themselves to we are being recorded everybody knows this and the prosecutor argued they know they're being recorded they're not going to say things the way that they mean on the surface they're going to suggesting that there's a whole constellation of facts in the record that will enable the prosecutor to argue and to distinguish it from the cases that your lawyers talking about never was it said hey i'm an experienced drug guy and let me just tell you this is what they do so you in effect you're following tucker you're saying that because number one you had the language of the coded language or whatever it was and you had the defendant saying what it wasn't right that the prosecutor in closing argument is intitled to draw reasonable inferences from that evidence because the cause of that language coble call it was clearly evidence the testimony of the defendant was clearly evident and and those were reasonable emphasis for a jury to draw given all the consolation of facts in the record for the court well the reason i asked the questions is that  seems to be the most if you will land issue situation where a prosecutor takes evidence in the particular situation and tells the jury what it means when no one else has told them can i didn't i think rightly after our question about the expert and i think this question brings it up again i think if you think about it the if the united states had offered an expert that was going to projections like crazy was it wasn't as we're going to testify to these are kind of one off conversations i'm not going to say the most sophisticated kind of code they're not real they is that what you're saying i'm saying they're disguised but they're not distracting away oh i'm i've been involved in gangs and this is how gangs talk with sion as a whole and all kinds of other things they're not that kind of language so you're an expert really wouldn't be and i've gotten used to how these people talk and so i i don't think an expert or a lay opinion testimony would even be i have a hard time seeing how do you can be admissible and i know that the defense would argue it's  i looked back at the record in that case and it was just the jail call and the prosecutor's argument and the court both the district court and the appellate court said look i don't necessarily even agree with this inference that these jail calls me what the prosecutor argued they meant but it's a reasonable one that's a jury call it's a reason one based on this evidence that's a jury call and that's the thing myself i think is there what is m government not raising a free i'll say this i didn't i didn't argue it for a lot a lot of reasons one was i thought there was no error period maybe i drank my own kool aid in that respect but i do i really thought that second brief was already long and to really parse out every single statement and say this is our most there the court is very patient i'm sure but it would have tried the course patient be patient even more but having said that to for the proposition that you advance few moments ago and that the prosecutor is entitled to make and state the same statement based on inferences that a jury would be verdicts get thrown out if no reasonable jury could find meaning no reasonable fact finder could make that inference and i'm putting those two hold together i think for that for that proposition i don't see it's almost a matter of logic in a way you're saying i think i thank you counsel so we'll hear rebuttal from misconduct first the government talked about this being a credibility issue because mr sanchez testified but that wasn't how the argument was phrased in closing it wasn't phrased to the jury as you are the weigh the credibility of the defendant and all witnesses it was the government counsel making statements about what these terms meant doesn't he say those things like the governments of minutes or i submit there's one point where he says that but there's another point where he says he got fifteen hundred extra because he got caught by the docs and there's no i submit there's no no no no indication that it's not under your analysis would he have to use the term submit each time he said something to avoid valjean or that once he frames his argument in terms of the government sermons are we submit sufficient a sufficient predi seventy three percent of the closing argument by the government was on these jail calls it was a big big part of the case mr sanchez had a plausible defense and this went straight to undermined it by the government and finally one final point what's really troubling i think about the prosecutorial misconduct issue is that there are hundreds of essentially hundreds of hours of jail calls and for the government counsel to pick out a couple of snippets without putting on an expert to testify or case agent as to what these terms meant it really does go to facts not in evidence and does put the weight prestigious of the united states government behind what the prosecutor is saying any questions from my colleagues thanks to both counsel for your argument the case just argued is submitted in the current stance in recess for the