please the court this is primarily the sixth in the case the government deprived cojones of his constitutional right to confront the witnesses against him when it introduced out of court statements from a confidential informant in order to fill the gaps and it's purely circumstantial case those out of courts but so was there or was there any kind of curative instruction to the jury and instruction was given to the jury judge smith  telling them that one type of statement that was admitted was admitted not for its truth but just to prove government or just to show what law enforcement did explain their conduct however under this court's precedents and the supreme court precedence went out of court statement implicates or incriminates a defendant and instruction is not sufficient to cure that constitutional violation and it wasn't sufficient here now there were two types of statements out of court statements that were admitted in at trial the first type were well called predictive statements these are statements from the c i that a drug drug deal is going to occur at a particular time and place and that included on may third the date of mr jones arrest the second category of statements were it was an after the fact statement from the c i and this was a statement that on may third quarter jones in fact had received a large amount of methamphetamine that the government's i'm about to start with the after the fact statements unlike the predictive statements which the defense learned about in pretrial discovery and which motivated the defense to file their pretrial motion to exclude the after the fact statements heard about the after the fact statement was during the direct examination of the prosecution's direct examination especially i mean their duty to disclose it would only exist if the testimony came in for substantive about well let's say you ask the exact question a judge agent claiborne how did juno a drug deal occur so on cross you said it and then he said well you've asked it you want the answer and you say yes and he said well the informant told me the drug deal had occurred had that been it that would be more arguably more invited error open the door under taylor judge against and that still would not be invited was first introduced by the prosecution's own question on direct and the prosecution said it was quote based on the information you received or jones have received a large amount of methamphetamine that was the prosecutor's question and with this  decision to z teaches is that you don't need to answer for for a confrontation because violations the prosecutor's question alone can introduce our court statement and that by itself was testify whole chronology is important and it struck me looking at this transcript we have very sophisticated lawyers that were not in our questions at all the government is pursuing a dangerous drug conspiracy so before trial they don't want there is one of them going on and you  don't know agent you can't even say you know if you heard from the informant that you're very careful you said you don't know you just believe and then the government ought to redirect in the the are the portion that's the most concerning to me basically there's no basis for this now and then the government uses that as an excuse to introduce this after the fact statement directly in front of me or josie taylor was exactly the same in taylor there was an inconsistency in government testimony between the type of gun you can't say what it was one of the other and then the government used that inconsistency with that on the questioning as an excuse to introduce the outward statement of of the declaring that the gun that was found  saving about guns but the drug deal and the the alleged completion of the deal the government zone position is that's evidence not only for the drug company but also for the gun found their theory is well the gun was found near where drug transaction happened so what's really happening there is the courts are holding that the defendant third question created an issue of credibility or relative or something like that that made the statements relevant for reasons other than the truth and so i think those  true but was offered to rebut this challenge to detect play ones or i'm sorry especially to play once from bill over again taylor teaches us that when the defense doesn't know about the state we can't hamstring defense lawyers to not challenge the parent consistencies in the government's testimony out of fear that there may be some undisclosed out of court statement that they're then the government will then be allowed to introduce to explain  instances where law enforcement conduct needs to be explained especially words can challenge and therefore you can introduce statements like the predictive statements in this case however what kizzy teaches is that challenge why on force what was sitting at the gas station or why they were sitting in all the other locations of surveillance and yet every time the government talked about any surveillance they started by explaining this  and i say that subject to harmless error analysis if it is confrontation violent like the second category state and most of those going through either believe it  of agent claim one and the prosecutor has gone direct so why did you follow mr jones i made a third and that question was raised by prior cross examination of other witnesses the challenge criticized contradicted the investigative techniques of the of the officers why did you follow this guy on that occasion he didn't follow that guy on this occasion you knew there was drugs on that occasion you could make a stop that had been set up through broke through cross examination attacking the investigative techniques as if it hacking the competency or the reasonableness of what the officers were doing that was good friends an attack on the investigative arguments went along these lines you're in from the witness stand agent clay bourne detective long and reliable information about where and when at any cruise is going to be delivering drugs it wasn't the jones was going to get it it was were already crews they were able to co rm what they're being told by their informant based on information gives that's the first time the second this is in the opening closing and that's an eleven forty five a record as as with all as and all these because we know this is talking about september twentieth we start with the informant tip an informant who has proven to be quite reliable in telling us where cruz is going to be ok but still ok september twenty eighth it starts with a tip from an informant that mr cruz will be delivering narcotics to the target in georgetown jumping to april third and says as we always do that mr cruz will be delivering narcotics this is the situation which brings us to may third and this is the one that  probably close but i don't think it gets there i would suggest that even if all we had was the evidence of what happened on may the third that would be enough to prove beyond a reasonable doubt but luckily we have more we have an informant typically and that someone from  any cruises organization is going to be delivering methamphetamine at this gas station or the hill and those those at the circumcised don't find anything where it was used to say we knew that he had just read it aloud and you know it's there was how do you know the drug deal happened this is including argument the government well the informant told me right we called the informant and said did the deal happen and he said yep it sure did and that's why they chose to follow we called the informant and said did the deal happen and he said yep it sure did how could the defendant cross examine that informant who in closing is the one the jury here said yup the deal happened and that's that's the crux of it and that's what that to me is just in him i'll just be blunt because you're experienced that that's a completely improper argument in closing they're not saying and you heard the judge the informant told us where to go they're saying you heard the informant say the deal happened there's just no i mean i don't think even judge sparks thought that that wasn't a confrontation clause violation he just said you open the saying this was error it's just a question of was harmless i don't think i think i can say i don't think you can i agree and i think that us the question about the different opening the door inviting there for them but as i read the cases at least in this context in the context of uniquely difficult for the defense because the ex parte hearing that happened in october of two thousand and seventeen is the first time that the government elicited from the sea is from eight claiborne's zero in addition to telling us where to go he also told us the deal went down but they don't get disclosed back so they asked when went on direct the government says what do you do claiborne's you got pretty close why well we spoke the informant that's why we are still right on the edge why did we get the  rule because once it's going to be used substantively that you you have to disclose the impeachment because in that same expert the hearing the government elicits from play board that this c i was getting benefits money and immigration benefits but i think at the time we had we it wasn't a plan but then it evolved that you did use it on redirect the exact we did and they knew about it and i point to you in the cross examination of detective langham later in a case where they asked the same types of questions you have no suspicions you had no hard present ordinary i didn't know that record was so your position is actually they knew that i was a no no let me let me finish my question your position is the record will reflect that a y they knew the cia not only said a deal will go down but that that the yield did go down though i won't say that they knew it before the questions but then they that's why on cross it's an innocent defense question to say how did you know because they haven't yet been told that clay bourne knew from the informant that the deal actually happened they weren't given that testimony but why why were they entitled to their testimony because it's impeaching but they're not entitled to all and if you're going to use it  have to get it if you're going to get through claiborne's that the only reason he knows this deal happened even though no one saw the guy is because the informant told him yep it went down which is exactly what your prosecutor elicited on redirect it's exactly how it's used in closing so once it becomes substantive evidence the best proof of guilt is the informant said it happened well they've got to have the evidence that the informant was being paid money and getting immigration benefits you see my point i do see your point  i and i can't i can't tell you that the record is clear enough for me to write make representations the judge said if there is something get the record i don't know what happened after that right i don't know if i don't know if there were records given i know there was there was later kind of stuff i don't have that kind of stuff but i i won't rely on that these are tricky cases i think the government's in trying to stay on the edge what did we do therefore we did it for this reason but then the cross is close arguably inadvertent they don't even know they walked close to it but the cost and say how did you know that would be them inviting there it says you didn't know you didn't know you just believed that that opened it up to respond to what's your best case that a defense cross examination question allows the government then to actually ask the substantive proof question where that's a sort of what i think of this fire with fire oh well you know what's the best dumb ass who best case where does cross open up redirect to actually turn the informant into an affirmative witness one of the i don't have a case of i don't think it exists well this may be it it might be in i'm just one judge up here i'm just one judge you know and i appreciate this and this is i mean i've this is this my dear i agree the record twice  parks's to the jury don't use it don't use it he says it twice and you know and i go back to look this was the defense of theory and so the question is if you left the questioning alone after the cross it was you believe didn't you no i  you believe didn't you know i know you believe i'm going to tell you i knew you leave that alone ok and so what's the defense use of that now you go back to what their defense yes they can their defense had been investigators were sloppy they didn't do what they were supposed just forced me to use it substantively so we need to disclose the identity we need to give you some good lawyer discovery because mike with this is now going to say how we knew that would have been a good it would have been good yeah i would have been a good practice but that's not what happened here we are not so here we are but i maintain that at that point the defense would have had an argument that look not are not only did they take bad investigative techniques not only were they advocates when they could the officers were advocates when they came in here but they wouldn't even myth that they didn't kno it doesn't come to your mind what invited these maybe back to that question do you think there's a difference didn't the two doctrines open the door invited her to be honest with you had not thought about it before i think that that they get used to you and i thought i said it is i as i read them look what they're opening is or opening it for a proper use not for use that goes beyond it's and so i think it was opened for a non hearsay years and then the question is well this is one of those statements that not only has he not here to use but it also directly implicate now is that a different problem and and has to be a pharmacist i think i think at the end of the day it is going to be a harmlessness question and i think at the end of the day the  twice and this one is more difficult but this particular circumstance had had the defendant jones meeting with that any cruise or his associate on the last occasion five different times and they were all very similar they were in some parting lot one of them was sort of broken up and the suspicion is that it was because they made surveillance and on two of those not involving jones but two of those on one of those meetings with groups there were seven hundred seized from the guy who met with them under very similar circumstances and the other one involved him around or if one who testified at trial that he had twenty five to thirty similar meetings with already crews in which he got quantities of methamphetamine and case i think but i don't think the drugs are i think the drugs i think it's harmless given all of those circumstances given the way the case was tried and and as i say what's the relevance of the gun what's the most the relevance her experience that drug dealers carry guns yes why do they do that the purpose of that is to protect their product and protect themselves that was the evidence together with the high speed chase i mean the gun is tied to the drugs but but the  evidence of the drugs comes from the involvement of eddie the crews the distributions and that's why i say that the case for the drug conviction is convictions this much stronger case because the guns were the circumstance is well he's a he was dealing drugs drug dealers have guns and the gun wasn't very far from the math and it was between the math and where he eventually stopped with those windows down and he gave but i guess i agree a trial the harder case is the gun but if once you've got the witness you can't be crossing the deal went down sounds like the gun the drugs it's pretty easy case if they can impeach that guy the i  i'm looking at it from from the other standpoint is is independent of that i think the i think the gun is sufficient but but i think there's another component here because there was a prior gun conviction that was put in and one might one might ask why did you wh just chicken saying you asked for the government's best case on invited error and the government couldn't give you one and i think the reason is because taylor is the case and invited there that applies here and taylor supports the argument or supports the finding that we the defense did not invite the after the fact statement in this case i have will state unequivocally the after the fact statement was not jiminez where there the court found that error was invited show exactly why they don't apply here in both those cases the defense knew about the statement beforehand the government actually agreed not to introduce the statement and then the defense tried to exploit that agreement through by attacking the credibility of law enforcement officers and making it seem like there were gaps in their knowledge when they knew there weren't gaps they just thought that the government's agreement not to introduce the statements also look at sorrow in kizzy you have the out of court to clement police watch him go to the house have a short communication with the defendant walk away they arrest him find drugs on him and he says i got the drugs from the defendant abo before the police then get a search warrant go the defendant's house the defendant answers the door sees the police slams the door the police break down the door and they find the defendant over the toilet with a five gallon jug of water pouring it down the toilet trying flush something they then search the house and they find over a thousand dollars in cash they find more crack cocaine they find guns they find a money counter they find three surveillance cameras that are still wrapped up and at the end of all of that this court still held that the error was not harmless and the reason was even though there was all the circumstantial evidence the only direct evidence that tie the defendant to the drugs in the declarer's pocket was a clear statement that is exactly the case here none of the law enforcement officers on they third saw cojones exchange anything with anybody no one witnessed an exchange the only evidence of cojones element of the crime there's no doubt that the defendant in sorrow had the methamphetamine he just claimed he didn't know that box of cat litter he'd just been paid to take somewhere contain methamphetamine but this statement the cia statement didn't go to that intent element it went only to the session here there's no mismatch between the c i statement and the really the challenge element they're exactly the same which is what happened in crazy i want to just briefly touch on the instruction incriminates a defendant and instruction is not curative so that comes from the burton line of cases but it has been applied outside of cases that involve codefendant testimony and that makes sense because if you have a law enforcement officer up there on the stand saying this witness that you're never going to hear from as incriminate of the defendant that's so harmful that the usual presumption that jurors will follow the instructions is waved and that was the supreme court's holding in b