errors that that that undermined the the the integrity of the jury process and i refer to this case started as in the original indictment as an impression that that the argument of weight didn't go to the element to the crime or the sufficiency of the evidence but rather only to punishment therefore therefore letting the the jury  consider of the testimony can see concerning those eighteen kilograms of cocaine in insta liberations of the old over arching conspiracy charge found that indeed weight was an essential element of the crime of narcotics conspiracy at least as charges of the want to a and and found that the evidence was speculative too speculative to be considered and was not considering that as part of her analysis on weight in determining whether the government cared its burden and the jury's verdict as to the highest level of culpability was sustainable the district court had correctly decided that it had the authority and that it was indeed wait was indeed an element and not submitted that those eighteen kilograms for the jury's deliberations it's our position that the that the integrity of that process has been undermined whether we don't know to what degree that jury took into consideration those eighteen kilograms but only as to the total weight but as to mr oliva those conspiratorial conduct and what his entire responsibility should be in the you had agents flying up from florida testifying to it you had a recording it was a major piece of evidence and again your honor i'm guessing it's more of a taint argument as you as you mentioned that by the by allowing the jury to consider the eighteen kilograms of cocaine because that in itself but that that connection to those eighteen kilograms was insufficient to allow it to go to the jury and the other argument was your honor of the hearsay impermissible hearsay the letting the non testifying confidential source testify that aleve oh was the one who informed him that drugs had arrived or were in florida you are going of the government that i open the door somehow i didn't my questions on cross examination had to do with when the agent discussed those  kilograms with him and and whether or not he had given a leave of a telephone number which ended up being an undercover but the the question on on redirect and which was later used oliva so that's a different different question that i don't feel i open the door to i thought it was an impermissible use of the year say as was the use of the chat messages of and text messages of individuals who were not intent to fight during the trial who had no a sensible connection with with mr levy with the conspiracy that he was alleged to have participated in they were just excerpts that were pulled out of conversations that that demonstrated more of a buyer seller relationship between those individuals in an overarching conspiracy which he was accused of your honor please the court my name is jessica lark and i represented the united states below and i represent united states here on appeal and i'm sorry that my voice is hoarse there's a cold going around our entire office troubled by your your argument in justification of your eliciting incriminating hearsay i'm referring to page fifteen of your brief you say that the that the defendant was the one who will listen to hearsay for starters so you were justified in doing it to rebut what the defendant does and i'll acknowledge there were three incidents in the defendant's examination and the first two were admitted lee attempts by the defendant to elicit hearsay that would show that the information came from the defendant but in each of those cases there was a prompt objection and  sustaining of the objection before the question was answered so there was no hearsay testimony elicited then you say in your brief in the middle of page fifteen defense counsel then walk through the door the next nine and i don't see any hearsay there what counsel listed it was he said he was going to do it a different way and he did do it a different way and so far as i can see there's no hearsay there he elicited that he got the telephone number from the seed row that's not hearsay and then he said that in your question did you give the she drove instructions yes i instructed him to say that that he didn't want to make the call and out of court statement to prove the truth of what is stated in that out of court statement now where's the out of court statement offered to prove the truth of the state of the courts here and the statement is that a seizure then told the defendant to call the undercover officer he that's it's not hearsay it's not hearsay when one when one testifies i instructed somebody to do something that's not hearsay that's correct your honor so where's the hearsay the hearsay is not to point to testimony which included which included an out of court statement which you argue  but then he said i'm going to do it a different way the different way was by eliciting that the that the witness law enforcement officer got a telephone number from you cedric that's not hearsay and that he told the c drive to do something and you tell the defendant to call the number so so your honor says that the information that's where you're reading yes so i'm one second is on page one to make sure off doing anything to i checked out the number you're on i would actually cite to pay to sixty eight and sixty nine which is when the questions go up and says and sixty nine in the questions go as follows question this is on cross examination so you had the information from mister because that's not that's not what you referred to in your brief you refer don't know i mean the transcript page as you're on are you saying we should look at sixty eight and six that's correct your honor well that was the second incident i'm talking about your talk i'm talking about where you say defense counsel walked through the door the next morning because sixty eight is the is the previous one and that right so yes objected to and was announced no your honor it actually was answered before it was objected to it says question so you had the information from a seadrill correct about eighteen kilograms answer that is correct then i objected and then the court said i'm hearing doors opening questions been asked and answered and there was no striking agent deals answer at that point so at that point the record in front of the jury suggested only that the information about the eighteen kilograms came from the confidential sources  was the entire grab defense counsel's argument which is that is seed row was a bad actor who was acting to frame the defendant that the defendant had no information and no involvement in the eighteen kilogram shipment correct correct and so that it was entire conspiracy to frame the defendant that by the by both agent l and c to row and so i think that that is was really what what was one of the things that we were  that was now an answer on the record when you say in your brief for you that paragraph page fifteen of your brief you're saying that one should disregard when you say defense counsel walked through the door the next morning we should just be stricken because that's not true there wasn't any hearsay the next morning the hearsay was in the previous part in the first half of the paragraph i on what has been a little bit where it pointed to in sixty and sixty nine for really three reasons first there's no prejudice because as we argue here and as we attempted to argue to the judge to pronate although she rejected the argument at the time that these statements could have been admitted for their truth under the of curative admissibility and so the fact is that this court can affirm on any ground that supported by the record and the fact that the statements could have come in for the truth means that there was no prejudice in this context secondly the district court in a very short trial gave a multiple limiting instructions there was a limiting instruction when the testimony was first elicited there and then there were a lot there would be a woman instruction was actually given twice at the at the close of the trial because the first time the district court misstated and said that it was during the defense of nation she was then corrected and then said no was during the government summation and if you read the transcript it says she's looking at the jury and she says they got it  that was because she was responding to to basically what she was seeing the judge the jurors were indicating to her and then third this was one statement out of an entire were bottle and there was no objection at the time so this court is looking is is reviewing the air under plain air review because there was no contemporaneous objection and also the this court's precedents make very clear that the court is not to consider the statement on its own but in the context of the entire summations that were made and then the entire arguments that were made during the trial start with which is that there is simply no so this appeal challenges only issues that with respect to the cocaine if we step back for a second mr oliva was also convicted be one a methamphetamine and the and there's no challenges to us to that portion of the conviction he also received the mandatory minimum sentence so even assuming for the purpose of argument that this court agreed with all of the appellate arguments there's really no there there is no recourse because he received and there's no prejudice because he received a mandatory minimum sentence maybe we would having a different conversation possibly if he received a sentence of one hundred twenty months and one day but that's not what happened here so even if this court overturned the cocaine conviction he would receive the exact same sentence from judge pro ne so there's no room there's no need for reception saying even if this court were to agree of course as we argue here in arguing our briefs we disagree with the opponents arguments with respect to cocaine but  before the court sustain the objection but that question didn't include an hearsay the question was you had the information from the c drom to looking at page sixty eight line twenty two that's what you're talking about right that's correct your honor the asked where did you hear about eighteen kilos from who did you hear about eighteen kilos from i heard about it from you see drug where is the hears and how there is a statement there is an out of court statement that's when i asked somebody who did you hear about something from i heard about it from so it's it's not he  put in prejudicial here's was because the defendant had opened the door by doing improper hearsay on his part and i don't see any idea i do see an effort to do it in the first of the three incidents which you and said i hear doors open but they haven't and indeed you acknowledge in your brief that they hadn't opened then you say the next day is when the defendant didn't walk through that door and the questions that were asked on the next the court says to us you can elicit that a seizure of told him that he had been given a number to call not from whom he had been given a number to call and that's how we found out there was an undercover involved and mr capone well so the first thing is that i think that the information as we argued to the district court and came in for us to do was to explain for the proper non hearsay purpose of what agent till was doing but he was  allowed to explain that the reason that he was asking if seadrill to tell the defendant to call the undercover was because he had information from a  defendant had provided that that phone number and had information about the eighteen kilos were gardeners of whether or not that was true that is the proper purpose which is so that agent dill can say it's not that i mean to to set back he cases in which the government in different offices has argued that they are allowed when when an agent testified when we were observing a certain house why were you observing that house oh because we had received information from an a from a from a confidential informant that the defendant committed the crime and that's why we are looking at the defendant's house we were just making it clear to the jury that we weren't targeting the defendant or doing anything improper but that's highly prejudicial hearsay and you you can't introduce highly prejudicial hearsay just to show that the government had a good faith basis for doing what it's doing well your honor if you look at you know you can do that within the rules of evidence that the defendant artfully skirted the questions and i'm going to do it a different way and here listed that the agent told  i'm telling you have the defendant make the phone call that is a proper question you know she didn't open the door to you to ask improper questions because the defendant has brought out something that you don't like through an improper hearsay for hearsay when there was yours and defended your honor i think that those are both arguments that can be made but right now i think that the court is asking about that there is also a non hearsay purposes even if the court disagrees you argued that the defendant's hearsay justified the prosecutor's hearsay and there wasn't any defendant's peers there was an attempt to it was objected to sustain to hear so you have yes your honor at this moment i am having i am having that difficulty i apologize but i would also say that the other arguments nevertheless stand that there was a proper or non hearsay purpose which the court allowed which was to explain the actions of agent more than five kilograms of cocaine in other portions of the record and i don't think that this evidence with respect to the eighteen kilograms was so different from that evidence that there was that that there was taint in the remaining cocaine evidence involved in a frame that doesn't it doesn't mean that he did make it up that that's correct that's correct it's possible that and that's why i think we are conceding that the bottle point was in art fully phrased on the main summation the government argued i think more properly under judge capone is ruling that this was not improper motos by agent on rebuttal again and in our full and exceeding the bounds of  judge ruling in terms of arguing in the terms of a seizure but as i mentioned before i think that that despite the fact that was error that here that error is harmless for a number for the reasons i've already state a jury hears this type of evidence and is considering the defendant's overall guilt an overarching conspiracy when you have such improper advice might say improper  testimony and comment on on summation that we as his judge without pointed out was not a door open by the defense no that was really relevant its relevance relevance was it was actually that you he sideroad that that my client was not involved in the importation that you see joe had independent information in his capacity as an informant because but but the but the confidential informant by by having him but then it was elicited that he was directed to do that by by the agent real issue was was where did the defendant get the telephone from that was where i was going on that is the real issue because the defendant knew the telephone number that meant the defile of defendants somehow got the phone number from the people in equity exactly your home the government had given it so so so so you were that through the through the question when you asked the agent just to say that he told the c drive to tell the defendant to call that number the jury could draw the inference that the defendant got the number from