united states against clemens is the third case for argument this morning united states that mr clean as had earned eternal damnation and that he was as evil as the person who betrayed jesus christ right down to his inferno argument during closing was probably improper but what's the prejudice here the prejudice here your honor says it is not simply a matter of taste it's that the prosecutor implored the jury to convict not on the evidence but rather on extraneous well that a heroin capsule would be connected to this highly mikuni crime scene and on day three the government had bryan stevenson a forensic analyst come immediately after the tyler mckenney medical evidence and talk about this irrelevant heroin capsule the government wanted the jury to infer that the heroin capsule was in some way connected to the tyler mckinney crime scene when indeed it was no way connected to the crime scene and it was never  up for the jury what the harrowing capsule had to do with the case that all this created in france the one piece of physical evidence that possibly could have created an inference that heroin was connected to the crime scene was this heroin capsule which was improperly introduced in the middle of the government's case based on the government's assurances which were false additionally and the insufficiency of count two is damning there any reason to think that the victim had access to there was evidence a deuced at trial that did tend to show distribution of heroin particularly in the weeks preceding february to twenty thirty thousand eleven and indeed there was no recovery of heroin at the crime scene to your point that's the basis of the inference that he took the capsules that his body broke the heroin down into morphine and he died of a morphine overdose that's a perfectly straightforward inference and very difficult to see how any that the government experts both testified that morphine intoxication was the cause of death and that they could not conclude medically that heroin was the cause of death what other shore should morphine was the any other evidence about what could have happened to the capsules that the victim walked from the defendant an hour and a half before his death well your honor there isn't evidence that they get that capsules were purchased from m clean miss by this event there is no evidence particularly that there was heroin distributed to mr clean this other than in french messages certainly not that there was a type of heroin  distributed and and and for this reason the government chose to place this irrelevant heroin capsule evidence in the middle of the tyler mckinney evidence to create that inference because there wasn't there wasn't properly supportable by the evidence that was introduced at trial and as i said your honor both of the experts testified that they could only conclude that morphine intoxication was the bought for cause of death and they could not conclude that it was heroin overdose and it's the responsibility of the prosecutor to prove that it would have been heroin overdose and to reduce evidence tending to show ingestion of heroin and actual  of the evidence went hand in hand with the prosecutorial misconduct in this case and without the prosecutorial misconduct we we wouldn't know if the jury would find that count two was sufficient to convict mr clean a space on the evidence presented at trial there's certainly enough of a question as to whether the evidence is insufficient but the prosecutor ensured that the jury wouldn't determine anything other than what their duty was to god when they were considering the evidence or lack thereof and your honors there was also evidence irrelevant evidence of a ziploc bag or a baggie of sorts that the government chose to elicit from dan wonder the lead detective as well as the stepsister at the deceit and it also had nothing to do with carolyn and the government chose to elicit that testimony anyway if there was physical evidence if there were proper inferences that could be created the government should have presented those to the jury that failed to do so s most crucially there was the incendiary sermon appealing to the religious conscience of the community there was also arguing for the admission of irrelevant harrowing capsule testimony which created an inference of physical evidence that w unsupported and there was repeated misstating of the scientific evidence conflating two different chemical substances heroin with morphine which was also not supported by the evidence at trial  yes your honor thank you may have please the card man in my name is bob harris and i prosecuted the case before the district court i would like to make one point briefly about the permissibility of the dante inferno argument and after making that point i will i will simply stand on the brief and take whatever questions of course may have the one point that i would like to make is it seems to me that throughout appellant's brief the principle o the government's employment of the analogy about other drug dealers and clements being worse than them is that there was no evidence about other drug dealers in the trial hence the argument was improper per appellant but i would point out to the court that on page eight of the government's brief i quote at some length the testimony of a witness named christopher gonzales christer and gonzales testified i'm a heroin dealer i at one time clements lived at my house we both sold heroin out of my house however and i'm quoting guns alice here i never sold heroin to kids who were fifteen or sixteen years old i told clements quote you shouldn't be messing with them kids quote unquote the plan i would like to make before i entertain questions here is the argument about clements being far more evil than other drug dealers is directly tied in to the fact that the jury heard evidence about christopher going solace another dope dealer who testified i may sell heroin but i don't sound of people who are fifteen years old so with that i will stand on the government's brief what and what does any of  have to do with the propositions that the government was charged with specific relating to dealing heroin or employing someone in a heroin addict but the point is that the question for a trial is whether the defendant committed the acts troll or not whether he's evil joining us to we wouldn't expect the argument to be antiseptic and we aren't and we certainly are not requiring it i think it is proper argument given the evidence from christopher gonzales about even other drug dealers won't sell heroin to children one of the witnesses who again and i'm not going to belabor this i thought it was a useful framework for putting climate this conduct in the context of it by the way to the local high schools assign done today in english classes no reason to believe that any of the jurors had an accurate understanding of placed in each of the circles i'm sure they did not and that is one reason why i tried to explain the concept of moving from the outer circles of the inner circle i never going to par such as christopher gonzales i think that's a fair comment on the evidence i sense of the court daydreaming may find that other people think otherwise yes or i'm sure are an attempt to focus the jury's attention on what matters to the outcome of this thank you that your honour's far from a perfect child this was a constitutionally deficient trial and inferences do not equal beyond a reasonable doubt and in this instance the prosecutor ensured that improper and unsupported inferences would equate to beyond a reasonable doubt in the minds of the jury based on their pronunciation of god's judgment cording to the interpretation of united states of america and for these reasons all of