detective brandon james and the first issue is whether or not the district court erred in allowing him to testify as both an expert and a lay witness without clearly distinguishing between the two types of testimony for the jury james was the lead case detective he was a material key witness for the government and while there was other testimony from other witnesses his testimony and not only his investigation of the case but also his experience regarding general drug trafficking the jury was told that he was in charge of the entire investigation the jury was told that he was in charge particularly of the wiretap operation he identified the witnesses or the rather the identity of the callers on the wire taps and there were many wiretaps presented to the jury but is he the only one that's really i think judge hawkins is going to be the only one who did those things that struck me is that it was almost overlap there were some other witnesses civilian witnesses that testified many of the civilian witnesses that were considered confidential informants or witnesses that were cooperating with the government where their credibility was at issue but we're not going to second guess a credibility determination so could you it would be helpful to me anyway if you could identify what wasn't overlap what only came from him of others both of that was material detective james did provide information on general drug trafficking activities that i don't believe overlapped with special agent jewel who also provided some testimony regarding that as well i think if you look at detective james's testimony as a whole that's the problem the jury was not told how to weigh his testimony because it was the dual role testimony and they weren't given that clear distinction the concerns that this court has expressed previously were present that the jury would know how to weigh this testimony and while there was testimony from other witnesses right again this was the lead detective who came with  i thought i did he may have but i'm not certain acquitted almost like they did which was hardly a jury that sort of took everything the government says he didn't provide expert testimony on firearm counts what he if he testified i don't remember the specifics of his testimony regarding the firearm counts but i know a lot of that testimony came from the cooperate in witnesses and officers that did surveillance when the stop was done when the gun was found but doesn't that to a degree also prove your point that the jury was actually looking at the witnesses i'm not sure we've heard an answer to the question of where this precise prejudice was i think if you look at his testimony as a whole the  testimony as he gave and then the expert testimony combined without giving a clear direction to the jury on how they're supposed to whether it's a story which this court has said the jury needs to provide or need to be provided with that instruction there's a concern that the jury jury gave his testimony undue weight and didn't know how to weigh the specific forms of testimony that he presented you know it it wasn't just it his his testimony was material to all of the drug counts all of them and those are those are all the counts that mr tran was convicted on the government has argued that that miss detective james testimony over in the expert testimony capacity was just interpreting a few george terms and i would argue that that's not the case here he did a lot more than that he w he did interpret some drug terms or jargon he also provided testimony about general general drug trafficking activities not related to this case what you would expect to hear in wiretap calls and again the government's case relied very heavily on the wiretap there were i think eight counts total where it was almost exclusively the wiretaps that supported the evidence and that on those counts he provided testimony on their opinions of the accuracy of the government's identification of the callers whether or not mr transacted the test the activity of others and the courts have recognized as there's a group there's a real risk of law enforcement witnesses being asked to interpret evidence that that's for the jury to decide and it usurps the jury's role now i focused pretty closely on the very case that this court ruled upon when looking at the structural error on the dual role did you say you said instructional error structural error not instructing the jury i mean i thought you said structural error but the very case is similar to this case in the sense that it wasn't in that case wasn't there just that was the only witness really was much easier in that case it's struck me in reading it much easier in that case to say this is the only source of very key testimony and  that's why we started i think speaking for myself with the overlap sure and i thought there were a lot of counts charged in this case and there was a lot of different type of evidence but i think when you i ended up having to chart out the different counts and when you look at the number of the counts that really just focused on the wiretap evidence there was a lot of of counts that really relied upon that evidence and the wiretap evidence detective james his testimony was pretty important for and i think that that's what you have to look at in looking whether or not there's prejudice  unless there's additional questions i think i am going to reserve the rest of my time for you may do that thank you thank you good morning charlene kosky for the united states mr tran does not challenge the reliability or the accuracy of each and change his testimony and he has not met his burden of even identifying specific testimony that he is challenging or any harm that it might have cost but even looking at the statements made that the government identified in its brief  under gadson and it is clear that there is no prejudice and just to outline the evidence that was introduced at trial that corroborated agent change his testimony first and also distinguishing this case from the foundation is not at issue again mr tran does not challenge the authenticity or the foundation laid for a major changes testimony which was primarily lay testimony with some expert reliance on his background and  drug as a drug expert the evidence against him was overwhelming and included the agents recovered hundreds of grams of heroin and cocaine from his residence along with seventy thousand dollars in currency there were video and audio recordings showing him participating in drug transactions they were also personally observed by law enforcement and those agents testified as to their observations and he was the subject of controlled by recorded by law enforcement and observed by law enforcement people heard speaking with them on the wiretap calls came in and identified him as the person speaking in themselves as a person speaking and talked about the code words that they were using in the code words that the organization used generally his location and participation in some of these drug deals it the police stopped him in a traffic stop and found drugs in his vehicle and agent jewel who was actually the expert witness in this trial offered expert testimony regarding the use of code words generally by drug trafficking organizations and that testimony for the cooperated agent  offered as the primary expert witness in this case i think that if you were bringing in a witness where you're clearly having the witness testify as an expert in a way witness that would be a more appropriate situation where the government might raise that issue but under the circumstances here he was we had an expert witness who was not agent james it was agent jewel isn't james has been as the lead case agent and he testified almost entirely about things that he learned in his role as the lead case agent and occasional on his background to provide color and and contacts to those to that testimony might also point out that the defendant tran did not rely on these portions of the testimony were not a part of his defense  trial which also distinguishes it from vera where the testimony as she was the only testimony offered proving the drug quantity here first everything was cooperated and the testimony that we're talking about here today was not u y noted thank you and i'd also just respond to one other point that appellant made and that is the comments that agent james made regarding his belief of the voice identifications which she which she pointed out is the only evidence that wasn't corroborated i would say that the accuracy of the voice is not at issue and it hasn't been challenged and b that testimony was given as part of the very briefly i know that the government relied very heavily on cats and their argument or in support of their arguments and i would just want to point out that gets them is a very different case and who gets involved an officer a law enforcement officer that was testing t primarily as a lay witness except for one definition that he defined regarding drug charge and that's very different than the situation we have here efficiently i did want to point out that in its briefing the government indicated that the jury instructions that were provided by the court were sufficient if you take them all together the direct evidence versus circumstantial evidence and then the expert witness testimony instruction and i would argue that it's not sufficient there needed to be an instruction that addressed detective james's testimony specifically where the why the jury instructions were not sufficient thank you thank you thank both counsel for your argument this morning the case states versus tran is