case on our calendar for argument is united states for says williams morning in morning may please the court my name is tina and i'm representing the defendant steven william microphones walking ok mr williams was convicted after trial of conspiracy to distribute drugs or asking the court to vacate his conviction because the government engaged in improper witness bolstering and vouching for its cooperating witnesses at the outset i acknowledge that we faced three major hurdles here st the defendant did not object to the introduction of the cooperation agreements into evidence nd the defendant did not object to questions about the truth telling provisions of those cooperation agreements and rd the defendant did not object to the government's closing or rebuttal despite all that in the circumstances of this case the government's questioning of the  cooperating witnesses and its arguments to the jury constituted plainer there were three cooperating witnesses here lombard as and edwards with regard to lombard and chavez t trial counsel say that their testimony was believable yes ak absolutely given that statement and given that edwards was the only person with really personal knowledge of williams why why should we even care what the government did with regard to lombard and chavez why is that even relevant st off because this court has held repeatedly that unless and until a witness is credibility questioned the truth telling provisions of a cooperation agreement don't go into evidence but that would be harmless if you're both vouching for the witnesses and saying that they're being truthful then why is the government's improper voucher vouching anything other than a harmless here's why i think it is because the government was arguing these three guys had to tell the truth because it was in their cooperation agreement and so we know they are telling the truth here and so the problem for the defense was the defense wanted the jury to believe chavez and lumb gander thing where all three had this identical truth telling provision in their cooperation agreements and the government is arguing yes that makes all three more believable to edwards the trial counsel attacked his credibility during opening argument exactly it seemed to me that that opened under a precedent that opened the door to the government's inquiries yes we agree to that so chavez and lombard are in one category and edwards is in another and so as to chavez and lumbered it was error and we say it was error that severely prejudiced our were because if those witnesses are telling the truth because of the truth telling provisions in their cooperation agreement then air though edwards is telling the truth because of the truth telling provisions in his cooperation agreement the government's lumping all three together we are saying no harm to us is that chavez and lombard are over here and should be believed not because because there believability is concern not i'm not talking about edwards as far as we don't want the jury to engage in this thought process we should believe them because they're and the drug conspiracy testimony and so what was plain error here was that not that the government question edwards about his the truth telling provisions in the cooperation agreement but what they did with that in their closing argument and i'd like to just point out five statements that were a flagrant  the cross or both in the summation first this statement if they are cooperating witnesses lie even ones they don't get their five k one letter there was absolutely no evidence on the record that said that or even from which that could be inferred and in fact that comment is not about the witnesses expectations it's all about the government if they long i we're not giving them their five k one letter it tells the jury we know when there's when there's lying and we know what the truth and we have integrity so that statement is all about the government well way if they lie even once they don't get their five k one liners and then later it's continue to cooperate is knew that if they would get caught and they would go to jail for a long time that's the nd statement that i want to focus on but aren't there ten don't really aren't there what isn't really about the incentives to tell the truth on the incentives to live the witnesses might have here's the problem of were made in some occasions right well except you need evidence in order to make statements like this so there was no evidence that the witnesses knew that if they did they would get caught which is in evidence so what the witnesses testified was if we get caught lying no five k one letter but to please the court my name is laura pomeranz and i'm an assistant united states attorney for the southern district of new york i represent the united states on appeal and i also represented the united states in the proceedings below stephen williams was convicted of participating in  conspiracy after a fair trial the opponent raises two issues on appeal both of which are without merit the government did not improperly bolster the testimony of its cooperating witnesses and in any event williams cannot satisfy his burden of establishing plain error in the admission of the truth telling provisions of the witnesses cooperation agreements and you can see that you jumped to three cooperators your honor in retrospect in light of judge scofield's rules and the the pre admission of the exhibits i think that the government would flag this issue for the court go does that mean the pre admission of exhibits i mean you know if parties wan if there is that the defendant had an opportunity to object to any exhibits that the government wanted to introduce and if there were any objection objection action was a stipulation as far as you're concerned that's our understanding again the government would flag this issue but on the one hand williams argues here that his conviction depended on the testimony of his of the cooperating witnesses whose credibility was crucial to determining guilt so if that's the case then the cooperation agreements were properly admitted as he was attacking their credibility on the other hand williams argues that he was not attacking the credibility of chavez and lombard which was a statement made by defense counsel in his  mation but if that's the case as your honour's your point now the argument suggests that the jury should credit the testimony of chavez and as such testimony regarding the incentives to testify to testify truthfully should not have a  to should not have affected the defendant's substantial rights and as such he cannot satisfy the pla records that showed the shipments between the defendant and yes your honor  and so the central feature of the defense's case was attacking the credibility of patrick edwards and so as counsel has conceded there it kit can't seriously argue that it was plain error to allow the government to offer the cooperation agreement of patrick edwards and to elicit the true provisions of that agreement now he welcomes argues that because he did not explicitly attack the credibility of lambert and chavez at the introduction of the cooperation examined special agent randall peters and specifically asked him about the truth telling provision of the cooperation agreements including who decides whether the cooperating witness is telling the truth how many cooperating witnesses get a five k letter and so without questioning he open the door to the introduction of questions about the truth telling provisions of the cooperation agreements williams also cross examined lumberton chavez about their understanding of the cooperation agreements their understanding of who decides whether the cooperating witnesses are being truthful and then argued in theirs in his summation about the incentives of all three witnesses not just patrick edwards incentives but he argued about all their incentives which  described as an incentive to appease the government not to tell the truth and so defense counsel stating that edwards stories make absolutely no sense whatsoever at every key point when it has to do with drugs or money is an attack on patrick edwards credibility and therefore is also an attack necessarily on the credibility of chavez and lombard who testified and provided key corroboration about many aspects of the drug that that was part of the argument it was largely focused on just that one could not believe patrick outwards and and that did not answer the response just very briefly to the five bowstring statements the witnesses the cooperate in witnesses lying once in the receiving their cooperation agreements or five k letters all of this was grounded in evidence that was admitted at trial was grounded in the cooperating witnesses testimony  trial as to their understanding of their cooperation agreements and their incentives to tell the truth and this court has routinely rejected similar challenges and has held that is permissible and proper for the government to explain the witnesses incentives to tell the truth would you think you any limits on that though i mean in terms of plain error could the government of said in summation and they know we're going to catch them because you know we're we follow them we are you know we know a lot about what's going on in the drug trade here that there are limits i think that that would you describe those limits well i think that the question is whether it's supported by the evidence that's been introduced at trial and whether the prosecutor is arguing from personal belief or the existence of extraneous proof and so here where the arguments were grounded in the record particularly of the cooperators understanding of their cooperation agreements their incentives under the cooperation agreements understood that if they lied they would not get their five k letter but what about the getting caught i mean if you only pay the penalty when you get caught what's what is the basis for saying government had beyond what any particular witness had disclosed and so i think that is part of the basis for making that argument and throughout the course of its summations the government reminded the jury that it was its job to evaluate the cooperating witnesses testimony their demeanor the way they answered the questions of both the government and defense counsel and how they were corroborated and in any event the jury was instructed at the beginning of the trial and prior to closing arguments that it had to determine whether witnesses were being credible and in so doing were to consider whether witness had any possible bias or relationship with any party or possible interest in the outcome of the case and so here the government cements that williams is essentially nit picking at certain details of the government's summation focusing on small details which again are statements that did not draw objections at trial and this nitpicking highlights his failure to meet the h burden of establishing severe and significant prosecutorial misconduct that amounts to a flagrant abuse and this is not the rare case in which the government's summation constituted such just just very briefly in response to your question would it be ok for the government to say to argue to the jury they know we're going to catch them that's exactly what the government did here  knows what's a lawyer and if they decide to make a big deal out of it i mean that was well developed in the summations wasn't the problem with the statement the witnesses know if they lied they will get caught and if the witnesses lie even one snow five k one letters those came in the government's opening closing initial closing argument so the defense was only responding to that  its closing and then i'd like to just point out that there was no corroboration of edwards as to his naming of the defendant as a participant in the conspiracy  there were shipping documents but no shipment was ever intercepted and we had only edwards word as to what was in there and whether the defendant knew what was in there thank you very much i think