matters have been fully briefed by both sides not going to belabor the minutiae of the case i'm going to jump right into what we believe to be the most egregious errors regarding the case that require reversal and a new trial in regards to that matter i would start off with dealing with the motions to suppress that were filed on behalf of mr garcia relating to his initial stop and his request for counsel at that time mr garcia during his testimony indicated that on no less than three occasions you requested counsel there was an individual an agent that was called by the government to testify and to state that that was not the case us was called by the government and he indicated that he was with the defendant for most of the time while he was outside the house before the search took place that he was with them a good portion of the time he indicates that there were fifteen dollars to twenty dollars agents at one point and that three dollars to five dollars agents had interaction with mr garcia outside the residence during cross examination of agents he indicated that at some point there was a time that he was not with mr darcy although he was with them for the vast majority of the time during the testimony of mr garcia who elected to testify suppress you stated that he didn't ask agents lianas for an attorney that he asked for an attorney to an agent that was in the courtroom that had a beard he also indicated that he had asked agent solenn although he misstated his name at the time of the hearing and called them agents and not for an attorney as well neither of those two agents although they were available were never called by the government the testimony of mr garcia was unrebutted as to his request for counsel not regard another problem regarding the motion to suppress was the fact that the motion suppress was conducted at that time at all there was a problem with scheduling for defense counsel at the time they had attempted to go see mr garcia in order to prepare for the hearing he was in custody with the state at the time that they went to go visit him he was being transported over to federal custody when they went to visit him so he was unavailable for them to see and also he was unavailable for testing that had been set up with certain experts that the defense had hired at that time in particular a polygraph examination and if i recall correctly there may have been a examination or issues relating to his signatures on the miranda rights wa  for despite the fact that counsel was unable to meet with mr garcia to review the five thousand seven hundred pages of evidence that had been provided and despite the fact that the government had only that morning provided videotape evidence that they were required to provide previously the magistrate decided to go forward with the hearing the magistrate ultimately ruled against m garcia the report recommendation was adopted by the trial court the trial court in order to cure certain the defects which then became apparent when there was a renewed motion for reconsideration of the  finding at the motions suppress ultimately decided to try and hold a new hearing and put the onus on the defense to call certain witnesses including agents a let the defense correctly we believe  did not feel it was their burden to call agents a length of the time we always have believed to maintain that the case law provides that the burden is on the government they did chose not to call it insolent and everybody stood on their previous arguments based on that we believe that there's enough to suppress the statements and the evidence that was collected the statements of mr garcia led the government by agent  admission to a subsequent house where drugs and firearms were found and to a storage unit as well going to the issue of errors at the trial the most important issues which we would address relating to the evidence that was a deuce the trial relates to  the use of text messages instagram post social media as the basis or the linchpin for the government's case there were numerous objections and pretrial motions that were filed  to in limited as regards the admissibility of that evidence the admissibility of the evidence was objected to on the basis of predicate authenticity hearsay and all the objections were preserved while we understand the mistake and i understand that the pretrial conference mr garcia conceded the op the authenticity of the post and messages your honor there was a stipulation as relates to the records custodian having to be called then so as relates to the authenticity we conceded that but there is also the corollary argument to that which is that they have to prove at least we believe that his sister circuit has ruled that it's not enough to just say well these posts were on mr garcia's instagram page but they have to take a step also we have jack to the fact that agents lent then went a step further and determined that he could interpret what was contained in those instagram posts those text messages and everything  else he was called as a witness and testified in all respects as if you were an expert when there was no qualification for him as an expert he was characterized as a summary witness button for all intents and purposes he was given the effect of an expert with any such pr i was it so i know that you objected when i didn't solent was explain the meaning of chopra but was there an overall objection to his qualifications to testify about the meaning of this the drugs lying yes we objected to agents alone testifying to it and we objected to the expert schwartz testifying to other than the at the point of his testimony about the specific board chapa your honor what i believe that our motion to limit he covered all that in general we had standing objections as relates to all of it and we objected during the testimony of agents a land that was overruled  n if i remember correctly judge sites gave us a standing objection as it relates to agents allowance testimony there was also your honor the issue of agents and one testifying as to what nathan parade as an alleged coconspirator stated at some point in time the government would try and characterize that as invited error in relation to a question that was posed tejan so lent however it overlooks the point that there was a taped statement of mr parade is that was never disclosed t defense despite the court's entry of the standing discovery order the defense is prejudiced because they believed at the time that there was no statement from mr parade is and there had been that that would have been disclosed as part of the standing discovery order furthermore the the tape statement was never produced and still hasn't been produced to this day the procedure undertaken by the court to determine whether or not the defense was prejudiced by the surprise testimony of a large coconspirator is problematic but even putting that aside there was no evidence that he was a coconspirator at the point time that the statements were made they were made after the arrest of both individuals there was no testimony as to how they engaged in the conspiracy together accordingly it doesn't fit the criteria for admission of a statement by a coconspirator even if it had been disclosed which it was not but we believe that the most problematic aspect of it is the fact that it was not disclosed at all your honor we also objected to the four hundred and four b evidence involving a shootout there was no evidence by agents a length that he had any knowledge of the alleged shooter out it was based on his interpretation of alleged posts on social media there was no corroboration that a shooting had ever even occurred there was no evidence as to when it occurred or who was even involved i know i'll ask your colleagues this question for me was there any link between this purported to being and what was on trial he said that that was going to be an issue that i was going to state as well there was no evidence of it involved the sale of drugs or the other than the use of firearms which is what i believe that the government has put in their answer brief that it involves and shows that he used firearms during the sale of drugs but there's nothing that in the post or in the testimony that shows that this was involved in the sale of drugs at all or even when it occurred we also objected to the introduction of mr garcia's priors they allowed the introduction of the police reports which were blatant hearsay and they allowed introductions of withhold budget occasions which under florida law is not a conviction all of this ties into the whole conviction by social media prior bad acts scenario which taken cumulatively prejudice mr garcia's right to a fair trial in this matter your honor and since my time is short i'm going to address the last  you which is the use or possession of a firearm in relation to or further into the drug crime the st step back may have taken care of that but at the time the st up act didn't apply we believe that there was no evidence that there was anything further in drug crime and that the expert witness testimony was enough regarding the nd house and count five thank you ron thank you made please the court you are ruben on behalf of the united states with me at counsel table is really won out a dent on the usa who prosecuted this case i'd like to begin with the question you teed up for certainly agree there was a lot of evidence with regards to the instagram posts st of all there was no four hundred and four b motion raised at the time of trial and the instagram posts occurred on february march in august and sixteen and it is the government's position that they are circumstantial evidence of the ongoing drug conspiracy which was alleged to have occurred from two thousand and thirteen until the time of the mr garcia's arrest in and sixteen we have evidence that mr garcia told special agents a land that he had this arsenal of guns to protect him from rival drug dealers we have the a k forty seven at issue in these texts now wait a minute this is an argument for why you needed to put in these instagram or why you didn't need to put him in and sit around there it's an argument for why it appropriate evidence to introduce but at the court point is taken that there was sufficient evidence elsewhere i'd like to address the other issues raised by mr garcia st of all with regards to the motion to suppress just as a point of clarification at docket entry fifty seven dollars page one hundred and forty one dollars during the suppression hearing special agents lee asked as testified specifically i was with the defendant and the whole time the bearded mystery gentleman that mr garcia identified in the courtroom was special agent sorry customs and border agent robert fernandez mr garcia testified at that same suppression hearing that mr fernandez only heard his rd a legit indication for counsel but all of this is beyond all of this is much less important then the critical determination that the magistrate judge made it is a credibility determining exactly  exactly and if there are no further questions on that issue all a move on to the other issues raised with regards to the text messages and instagram posts just as a point of clarification there are the instagram posts and the text messages the instagram posts the government filed i believe is documentary ninety a motion in limine a notifying the party out of an abundance of caution that it would be filing this ninety  by my reading of the conference transcript he did waive any authentication argument those records were introduced at trial on the st day of testimony page sixty and at that time the only standing objections or relevancy and undo prejudice so any other argument mr garcia raises now should be reviewed under plain error regarding the text messages it's our position in the district  agreed that mr garcia's objections to the introduction of a text messages were waived pursuant to government exhibit seventy two dollars which is a stipulation signed by mr garcia and his counsel which specifically states that the text messages are quote admissible at trial so we believe any further argument has been waived by that stipulation  your colleague said something about this case that i hadn't thought about it's probably his i shouldn't ask about it but he said that the i think i understood you just said the st up act takes care of the stacking of the convictions it is that is up in mamma only one that does know that i'm innocent i don't believe it does either but i'm not in a position to do clearly this was invited by mr garcia's counsel and he has not identified any bases on which not turning over the confession was a discovery order the standing was a discovery violation the certain statements of the defendant trachsel sixteen withholding a conviction withholding adjudication does not constitute a conviction under florida law that was addressed by the district court that's not the relevant analysis year it's whether or not there's sufficient evidence of a prior bad act dollars there was an overwhelming amount of evidence mr garcia was arrested in route to a drug deal with a glock firearm at his feet in a backpack along with marijuana packaged for sale in the room he controlled at the th street residence there were two other firearms one with an aim point site which shoots out a red light the other with an extended magazine with armor piercing bullets both of those firearms were next to or steps from drugs drug paraphernalia including this gail vacuum sealing operation and five thousand dollars in the kendall street condo he had a a k forty seven dollars loaded on the sofa steps from five thousand dollars pills of alprazolam he had an uzi loaded next to his bed and next to several bottles of  meth is even with cody in there was a statement by federal agents a land that mr garcia confessed to having this arsenal to protect him from rival drug dealers he told special agents allege that he used these guns to protect him during drug deals is associate paradies would come out shooting in case anything happened there was the expert testimony and there were additional there was even additional evidence so we believe the evidence was overwhelming with regards to counts three and five and as as the court noted the evidence was equally strong were certainly overwhelming in your honor as relates to the issue of the testimony of nathan parade days and whether it's a discovery violation or not the statements that were allegedly made by mr parade is were in relation to not just his statements but statements that he supposedly heard from mr harrison garcia the discovery order relates to oral statements made by the defendant we believe that that covers the statements that would have been made furthermore we believe that there is a significant problem in the fact that the actual tape itself was never even reviewed or made available for review to check what the contents were so that further cross examination to be had on those particular issues that were stuck in the position of just basically having to rely on whatever agents a lent or officer son says is contained on those tapes as opposed to knowing what's actually contained on those tapes there was the issue of whether it's over the top and relating to distributing incident while the core points out that there was a lot of evidence what may or may not tip the scales is something that needs to be analyzed by this court in determining whether or not mr garcia received a fair trial there or not just showing that he uses these firearms for protection or whatever the case might be or is maybe even props for his instagram post and things of that nature and to bolster his street cred per se but they're going one step further and trying to make a connection that he's actually shooting these guns trying to kill people involved in a shoot out in broad daylight in the middle of miami dade county florida without any evidence supporting that whatsoever there is not a police report that shows that there is no nine hundred and eleven tape that was made on the date of the incident there is no witness that corroborates that that incident ever took place there are simply text messages which are based on agent's lent interpretation of what those messages show that simply not enough under the law and that in another itself and by itself is sufficient to warrant a new trial in this matter putting aside all the other