conviction in this case and i think you approach that by force asking where is the evidence of twenty eight wheels of crack when you start to shoot an arrow through this thing to to look at it that where i think you start to see how the interpreted that mr hawkins a distributor is trying to introduce a kilos of cocaine to mr way or all so the problem with that is the expert testified that when you drop twenty eight you actually get thirty to me when you convert twenty eight grams you actually gain four grams which really introduces what i think to be the most provide a set problem throughout the whole case it's the experts testimony so let me ask you before you move to the expert stuff why in response the government's argument that they make in the brief isn't the april seventh co op which occurred within weeks of the call the talk of underlies the charge conduct here part of the same series or transaction series of events when you ar it's maybe close because the government puts testimony that it's cocaine but it's going in the wrong direction it's incomplete mr ware says i'm not interested in the calls over so it's it's  i would say it's uncharged unrelated conduct to change the entire theory of the case in the government's trial memorandum you don't see them referencing that call at all and so the most p honor he's testifying liking read their minds and so he is objecting not textbook nobody in this nobody is briefed on a waiver of failure to bring in objection so he's raising that in the interesting thing at one thousand and one twenty is the court says yeah you need to couch that in better seven o two language and i'm going to instruct the jury that they can make a determination of the foundation and whether it lacked warrants mayor at seven o two says that there is a gate keeping argument that when you increase the main when you increase the minatory minimum sentence that that is a decision that has to be made by the jury and that in the light of the lopez case the jury's verdict was  far the other argument under the senate scene is that there was not sufficient evidence to support my finding that the nine kilos which is going upstream to  georgia and he's also held responsible for the two hundred ninety nine grams of crack that are converted by others downstream so the neither of those are when that within the scope of his level of participation and there's really no determination as to what his scope was is discussed on forty three and forty four of the sentencing transcript as potentially a low level distributor and on page sixty three of the transcript the course says that  commonplace and with an officer around and say you know when they're talking watermelons they mean drugs they're talking cocaine and that to me seems to be what the case law speaks to is that they are trying fact then it's questions like it based on your experience as a law enforcement officer there was an issue over whether it was seven o two or seven zero one of the government's brief but in this particular case he was allowed to testify asked allowed to balad eight in the sets a bad president was allowed to validate his ok he was the first one to testify he testified extensively and he went into elaborate detail about it in by the way there is an objection by mr saucer i believe it's page sixty of that the trial record that big volume one i might stand corrected on that where he said i don't object to him as an expert but i do object if he's going to testify to the ultimate issue and quite frankly that's what he did throughout all of this he interpreted where you go and what they're doing what they're thinking what they're saying and it went far beyond that and quite for in looking at it with fresh eyes i think the issue of aiding the trier of fact in this case went beyond the pale and it became really improper vouching and i did not raised in the brief but i do feel compelled to say that because he basically acted as if this is ok i counted up the pages of testimony  a first it in for to the jury that he had special knowledge of the case and he was the case agent i mean it's like doing your own audit i mean he was in they are he had a vested interest in the outcome he was a case age that this is improper seventy two evidence but if it is seven a what evidence do we have precedent that would allow what well there is a precedent but they refer to him constantly the questions are if you go back through the transcript in your expert opinion in your expert maybe first or second title three case but if you put any agent out there and let up sit up there and talk endlessly with no restrictions about their opinion of the evidence it's going to come out like this every time because testimony that motion was granted at the time of trial however the government started to put on the testimony of the code language and if there was an objection and i think it is important to note that the objections at trial are not the arguments are based on the art of the arguments today are not based on the objections that were made at trial trial mr hawkins is attorney simply says i object to this testimony based  expert never said this is an expert never struck to the jury that he was an expert and it cut and it cautioned him to take his opinion testimony that they were to take that it was only his opinion that they were to look at the evidence and determine for yes he is i'm not i'm not disagreeing with you judge on that what i'm saying is the jury was completely wasn't i wasn't told over and over again this is expert testimony so that didn't give it that act extra added value that it's so plan first of all talk about that to support the conspiracy more than sufficient evidence here to show that there was one conspiracy we have mr hawkins talking on the phone to numerous  am the idea that just simply because a nother supplier was being introduced into the possibly into this concert ongoing conspiracy makes it a separate conspiracy simply doesn't make any sense at specially since this was so close in time to the rest of the incidences are going on and intercepted phone calls talking about drug dealing pointing out that any conversations with carlos where that mr hawkins is having it's it's obvious that carlos where has had dealings with this person he's trying to bring the bring this additional pillows in through because he he says i don't really trust these people it basically is what he's saying i've dealt with them  trust them and i don't really want to deal with them and i already have plenty of cocaine so i don't i don't think that the argument that there was a separate conspiracy is valid and there certainly was enough evidence to support the conspiracy and dition this case there were  thousands of conversations intercepted there were a number of relevant conversations between the parties that i just named specifically the conversations as to the crack cocaine and specific conversations about how to cook how to cocaine into crack cocaine and i have a point there was presented from which a jury could conclude that there were twenty grams or more of crack cocaine in those conversations were for the may fifteenth conversation that hawkins had with willie jackson in which thirty one grams were converted to twenty five grams of crack cocaine and the may twenty second twenty fifteen conversation in which carlos where hearkens are discussing the converting the two big powder cocaine into crack cocaine so there was evidence of a crack cocaine conspiracy as well and that hawkins knew about it as to the drug quantities for mr hawkins  find that based on the jury's verdict that he was only responsible for five hundred grams or more but the under alleyne the defendant is limited court is limited by the statutory maximum in the c s statutory mandatory minimum as to what he can sense but he's not limited in finding the amount of crack cocaine that can be attributed to the defendant in other words or guideline minimum based on the drug related factors and it was and actually mr hawkins was facing a ten year mandatory minimum anyway because of his part conviction but he was the court didn't reference the ten year mandatory minimum as it related to and the court did hear suggestions but the defense council didn't adopt those objections but the court did consider and i think in my brief i wasn't clear that court did consider that objection to the seventy four grams of crack cocaine that was attributed to hawkins but even if you subtract that seventy four grams of crack cocaine from the calculations the sentencing guidelines range would remain the same so any error there would have been harmless beyond  reasonable doubt and i would point out that the breeze probably the reason that no evidence was presented was because nobody saw that hawkins his objection actually was something that the government needed present evidence on because the agent was actually present in would have been put on the stand had anybody thought that it was necessary to do so but regardless the and error was harmless distinction is this case had no cooperate in witnesses no other witness who testified about somebody involvement briefly as to the lien your honor my client's position is that when he's made a jury makes a determination on drug quantity that fashion intoxication yes he got out of the mandatory minimum but that was driven by the drug quantities of which the jury already found and understand lopez is a little bit different case outside of the ni ok is the place the problem just so i understand it is the is the problem and you're co counsel was emphasized that they called him an expert repeatedly tap or if they had just said your knowledge and experience as a law enforcement officer do you think watermelon i'm reading from a case called united states versus joe you see i suppose it's how you pronounce a witness can provide interpretation a code word for the meaning of those words it's not perfectly clear be a participant or observer of a conversation to do so  is beyond that so far beyond it because it was just he was explaining his theory i mean the whole testimony he gave was his theory of his own case and what they were thinking what they were doing where they were going mr blanchard made that argument at trial and says wait a minute code words we understand but not to tell us you're reading their minds and what they're doing and i think that's the problem and i think it's a real risk thank you for your