on behalf of susan rodriguez i'm going to try to reserve five minutes for rebuttal to the jury question as to susie run through this was whether the government proved beyond a reasonable doubt that she was not as the defense contended merely in math in a variety of intense longstanding but ultimately personal relationships with men who were gang members but rather that she was conspiring conspiring with these gang members to participate in the conduct of the affairs of a racketeering enterprise and conspiring to commit murder to maintain or increase her position in that enterprise to prove its case against ms rodriguez the government relied primarily on the testimony of a cooperator glenda varro and it attempted to corroborate the testimony of that cooperator with selections of recordings the an usual trial explanation that the defense was free to request additional portions of recordings to be played which the court gave in direct response to the defense theory that the government was presenting of the recordings that supported its theory and that there were many other recordings that the jury would never hear that did not support it theory and nd the interpretation of those recordings by officers who provided days of intermingled lay and expert opinion testimony much of which was in admissible and all of which was received under the guise of expertise each of these errors standing alone requires reversion turning st to the instruction about the government selection of recordings defense counsel received two hundred thousand recordings in discovery the government presenting the testimony and interpret in these recordings on cross examination the friday before thanksgiving defense counsel elicited from mr guy ardo how you selected the recordings and i are to explain that the process was overwhelming that anyone who was available just grab whatever they could listen to no longer kept no notes were kept they were just trying to pick out the best calls of evidence that was the friday before th on the monday before thanksgiving the government moved for a curative instruction because they said that counsel had improperly suggested that officer guy ardo and perhaps other members of the santa ana gang task force got to decide what evidence was presented during trial to the jury the next day on redirect examination the government elicited from kiara that he had not concealed any recordings and that it was not  role to determine what evidence was relevant but on cross he explained that although the officers gave all the records to the government they only identified those recordings that were consistent with their  the case those recordings that supported their theory and they ignored the rest of the requests and he also testified that he didn't believe that the government listened to any of the recordings except for the ones that the task force officer identified the then broke for thanksgiving recess and when the jury came back and over defense objections the court given an usual trial instruction referencing the testimony before thanksgiving about how the recordings were selected and explaining that the defendant was free to request the court to play additional recordings if necessary to place the government recordings in context the court repeated this instruction at the end of the trial when the defendant refused to promise to refrain from arguing that the government selectively chose the recordings that should be played this was a reversal where o primary defense at trial was that the government had cherry picked the recording in a biased investigation and that if the if the jury had to listen to all two hundred thousand recording a different picture would  determined that the selection was fair and it shifted the burden of proof by suggesting the to the jury that the defendant had some obligation to put on recordings which part was particularly pernicious to the case where the defend it was in fact prohibited from putting on record had this been a mention in the government's argument because it's not uncommon for these sort of defenses to be mounted and for the prosecution to say in closing argument that look to the extent that you know the government always carries the burden of proof but to the extent that the fans thought that there was a recording that would be helpful the defense could have made that request to the court so had to come up in the government argument instead of the court instruction would that have been problematic that would have been problematic as well because as we know all of these instructions all of these recordings came in as co which is an exception to the hearsay rule the fact is the defense is not permitted to put in these kind of record so if the government had made that statement an argument it would have been a misstatement  the rule of completeness is there anything that prevents the defense counsel from saying wait a minute that selection was really particularly unfair because you have to play the next sentence for example in the next portion of the conversation in order to put it in the appropriate context mean nothing prevents the defense from doing that nothing prevents the defense from requesting it but in this case each time that the defense requested it it was overruled and this court has a very narrow reading of the rule of take it gave the case with the same district court judge in the same trial attorneys where the statement that came in was i drove the boat and it was only an smuggling case and that the false statement was i drove the boat while the captain was being and trying to fix the engine and this court affirmed saying i drove the boat is so the defended statement the rest is not misleading and therefore the district court did not abuse it discretion but really it's sort of off the point because we're not talking about the rule of completeness we're talking about the selection of recording investigation there were two hundred thousand dollars recordings there was no rule of completeness rule that would have permitted the defense to put in any of the recordings that were not part of the recordings that the that the government had already put in and so that's the point that the defense was trying to make and it became very clear at that before that the instruction was given again when judge selma said why are you going to argue that they've selectively you know imply at least and fairly put in evidence the defendant said we're going to argue th somehow if the defendant had wanted to put on any kind of recordings she couldn't put on recordings but it's a but it's a it's against the rules of evidence and she was not permitted to put on recordings the court have any more questions about that issue because of not i would turn to the nd issue which is that testimony in this this case presents perfect storm of dual role testimony because the government presented days of intermingled lay and expert opinion testimony much of which was as either and all of which was admitted under the guise of the problems of this case illustrate why several circuits prohibit law enforcement agents from interpretation  wholesale as expert opinion he gave the defendant a running objection for any time the witness interprets what is being said on the transcript and when the defendant asked what is the basis for a meeting the interpretations the court answered it's opinion testimony so any time he's interpreted what the words mean you will have a standing objection to hearsay and not a proper opinion testimony and then the court later explained that whenever again experts testified to their understanding or opinion of meetings of calls that was appropriate expert testimony under hankie it was just as clear that it was communicated to the jury that these interpretations were based on the witnesses education training and experience that is that they were based on specialized knowledge the court's explanation that the interpretations were being admitted whole all of the interpretations were admissible as either expert or lay opinion testimony and they were not in the civil but even if they were this court must still reverse because the court instruction opinion category yes i am arguing that because of the court explained repeatedly that opinion meant based on scientific based on his education experience and knowledge and so opinion in this case became code word for expert test in fact that's what they asked for everyone said well expert gives them even extra extra credibility so let's just say expert will say a piggin testimony is everything as expert opinion test so that objection was made i'm trying to understand whether we're playing our review on this issue or the objection was made in fact at some point the government offered to say well it when we're talking about expert opinion should we say you know based on your knowledge experience etc and the court said yeah you should do that and then the government said well maybe we should do that for a lay opinion also because lay opinion is also based on x y and z and the court said no it's not based on x y z lay opinion it's like hell fast with the car going so there was quite a bit of discussion as to what was lay opinion and expert opinion and when all the testimony kept coming in there were multiple objections from the defense that this is not proper expert opinion testimony and they were all repeatedly over overruled and the court finally said it's becoming abusive and obstructive stop objecting it's all coming in as expert testimony so the the defense was very clear that it didn't think any of this was expert testimony and the court overruled all those objections so the issue on appeal is not so much that the jury instruction didn't didn't distinguish between lay opinion and that's what opinion which would have been better of course and the out in out into the night circuit commentary specifically were recommends that issue on appeal is that all of that was admitted as expert opinion testimony so even if the instruction had said there's percipient there's lamping and there's expert opinion on the facts of this case everything that should have come in as a lay opinion testimony was labeled expert opinion testimony by the court and again both of the fight for that that i read out earlier and so what we have here is a case where basically that the case agents were allowed to just tell the jury their theory of the case thr through the recordings and they were the jury was instructed that they were permitted to do that because they had the relevant experts and riviera that's reversed i think i have four and a half hours like they really are very  lawyer that the government had concealed recordings from the defendants it was not true it needed to be fixed ultimately i did do some repair work with the redirect examination but i believe that a curative instruction was necessary it was not the one the court wound up giving it was the court's instruction as a very limited in my view watered down instruction it a recording and additional excerpts were needed to make clear context for for that recording the other party could present it importantly the defendant contrary the judge did allow the defendants to introduce excerpts of certain exhibits i don't know that they took him up on that offer but that was expressly permitted  so i don't think there's any error with the instruction which is a correct statement of law and it's not prejudicial as to the dual role opinion witnesses you know this court is in multiple cases approved opinion testimony of law enforcement officers relating to drug jargon street gangs the operations of street gangs and set of the very type of testimony that was introduced here and it is done so under both the label of expert testimony as well as lay opinion testimony i think in vera or perhaps it's freeman the court has noted that the line between those two is  both his training and experience but also his knowledge of the investigation as well so calling at times for a lay opinion and expert opinion testimony and that was an effort to comply with judge still in this minute order prior to trial that we try to make that clear so it's not accurate that it was presented that the opinions of officer guy are dead or officer feeney relating to the meaning of certain words and phrases in the telephone calls was or were all introduced as expert testimony we introduced it as lay opinion testimony as well this case is different from vera different from freeman and i think the other case the sentence cite on this subject in vera there was no cautionary instruction whatsoever the court found there was no adequate foundation whatsoever for the agent's opinions and more importantly the reason it was reversed one portion of the judgment was reversed not the convictions mind you but the drug quantity findings in the found that it wasn't harmless error the testimony there because it related specifically to the fact that it triggered a mandatory minimum that's not this case st we have a very strong cautionary instruction used repeatedly throughout the trial there it's based on the court's model instruction and at the defendant's request actually the court wiped away any suggest distinction between the expert testimony we struck  at the defendant's request any reference to the word expert and instead simply cabined it all as opinion testimony and that was at the defendant's request and there was no objection to the end result of the court's modified instruction to the defense didn't object to the fact that it didn't distinguish between lee opinion for example an expert opinion so i do think that issue it's she's me under  testimony shouldn't influence your assessment of the agent's credibility the mere fact that they were allowed to introduce testimony relate based on their training experience for example evaluate them like every other witness there was the  i noticed on pine but the so in addition address the subject you know the other concern in this area that the court has expressed is concern about you know the expert testimony or lay opinion testimony not be used as a conduit for hearsay we don't we have a jury instruction that expressly told them unless there is fact testimony out based on personal knowledge in any facts relied upon are not proven unless the again the witness testifies from personal knowledge about those facts or the facts are established independently by other witnesses so a very strong instruction is read but at the beginning of officer guy art is an  let's go to what i think the main point of it according the reply brief the main objection is a lack of foundation i disagree with their characterization of the  lead investigators in the case that he participated in every aspect of the investigation that as part of that he listened if he was in the wire room and also during a nine month wiretap investigation or a listen to i believe this testimony was hundreds of wiretap intercepts and overheard portions when he was in the room he reviewed fifty jailhouse recordings relating to this investigation he p witnessed as well as while it was being videotaped a meeting between petero hate is faction at the orange county jail and the representative of armando marina's faction  including ones that weren't introduced in through his testimony but nonetheless he reviewed them he participated in surveillance operations he participated in undercover operations or acted as an undercover agent  so we made crystal clear that he knew backwards and forwards every part of this investigation he was intimately familiar with all of the the investigation the facts we're presenting and the phone calls that he interpreted they were all introduced the ones that he interpreted they were all untrue it made it as evidence i mean to say and so the jury had a chance to evaluate read and listen while he was testifying and then when we went back to the specific excerpts they could evaluate his testimony does that make sense does it does it ring true so the and there were other calls and testimony of other defendant government witnesses including the cooperating defendant glen navarro an insider in the faction who can testify consistently with the main points that the main facts that really removed at some point replaced by don i feel are so paul's that were being interpreted were actually his interpretation or other of the calls that we reviewed with him was backed up supported corroborated by other evidence not as the defense suggests just you know by consistent testimony of a court cooperating defendant but by immutable facts that weren't changing videos audio recordings of telephone calls jailhouse tapes all consistent highlights one example of the testimony and there's a substantial amount of testimony that preceded it and so the example i was going to use was there are a number of bullet points in the  opening brief and they all we sort of in our answer in brief group them as things where officer garrido's testimony was based on his understanding his representation that to the jury that there was a conflict a multiple and his review recorded calls that's the foundation for a specified it's not what he heard from cooperating defendants or hearsay from other agents but specific that touched upon that very issue the existence of the feud i provided further foundation by linking back to the opinion said is this one of the examples that you're talking about a jailhouse kite or a recording that served as the basis for your previously expressed opinion he said yes so and there were also a raft of exhibits introduced through him as well as other witnesses telephone calls kites that are referring to  hurt at the jail as a result of it we have evidence that one of the hate is lieutenant joe laura had been assaulted at the jail during that same time by another gang member that sort of thing so there is a this is not a case foundation not only with the exhibits that were introduced by officer garrido but all of the other evidence summarized in her answer in brief that the jury have transcripts transcripts recordings in english then we didn't introduce the transcripts but they did have them in a little books like this one that allowed them to read along and  insider part of the o hate organization glendora who testified about day to day dealings that he had with her during the course of the conspiracy regarding all of the racketeering activity the murder conspiracy against  house during a search execution of the search warrant they the agents found tyrone rise letter asking for justice and authority to strike back against those individuals so that corroborated and go on the virus testimony on that we had testimony from oscar morial another gang member who had personal dealings with suzy rodriguez we introduced a number of telephone calls through him jailhouse calls since he was on the phone we asked him to explain what those calls were about rather than officer guy ardo but the we have ample testimony from that and again a raft of jailhouse calls and in exhibits i believe it's ninety seven dollars that's the one that's quoted in our briefing that we provided a cd with the recording so the court could evaluate the tone of voice in the general demeanor of the defendant where she's directing tommy rodriguez to strike out against the merino faction and after that call there we had evidence of several kates been intercepted at the  jail hard threats of about hard candy one hundred and eighty seven dollars referring to the murder statute to strike out against the members of the merino faction the evidence the convictions in this case are supported by overwhelming evidence of the investigation glenn navarro wore a wire specifically to capture these kinds of conversations and yet there was not one conversation with glen to borrow and susie rodriguez discussing any of these things he said that suzy crucial to the entire enterprise because she's the one who visited peter ohi that but she didn't start visiting peter o'hara in till the spring of two thousand and ten when beto marcus was already in orange county running the orange c lived in that house he was she was providing end of life hospice care to peter or his brother which is what brought her into this case to begin with this is a forty eight year old woman who had never been accused of any sort of criminal or gang activity before she's divorcing her husband tommy rodriguez and you know hey that is dying of colon cancer and she brings him into her home to give him care for the last six months of this life and her house becomes sort of like the game haven they have meetings while she's at work the government relies on the fact that there was some kill order that made that occur at her house but that evidence was undisputed that she was at work that day and didn't even know that it occurred suzy rodriguez gave her life for everyone she would do anything to help anyone that doesn't make her racketeer a conspirator or any of these things the government may hope that the evidence may have been strong against peter on here that and that's why they needed thirty