morning your honour's my name is jane lee and i represent the appellant in the fall of two thousand and eight the f b i began a drug trafficking investigation into a drug conspiracy inside a public housing  complex in puerto rico in ponce puerto rico they conducted the surveillance of the complex by setting up cameras in empty apartments and wiring c i's to do undercover buys  as a result of this two year investigation and palin and twenty six others were arrested in charged with conspiracy the bulk of the pendent appellant deny he was part of the conspiracy and he went to trial at trial the bulk of the evidence was concerning the existence of the drug point inside the housing complex the evidence that the defendant was a member of this conspiracy was not overwhelming three cooperating testified that appellant was a member of the conspiracy that he was in charge of the three dollar cocaine and that he was the right hand man to the leader of the conspiracy well it's not overwhelming your honor because these case even if there was sufficient evidence to convict this defendant absent the brawny sevenths that was admitted that does not mean that this defendant received a fair trial the government  horse doesn't have anything to say but isn't it relevant for the jury to know whether your client knew and how well he knew the other members of the conspiracy for example suppose your client didn't know that all they need to know their names and never met them i would think that would be a big part of your case you would he would testify i didn't know them converse lee if he knew them so well that he would be in a car with or be rushing up to the station when one of them got arrested doesn't that although it's not sufficient it isn't relevant to the prosecution call him no you think let's assume that you can show governments in total to show that a member of the conspiracy you know is another member of conspiracy just assumed out for a moment if that is right is there anything problematic about the photograph there's a lot that's problematic i three different police officers testified about this these photographs and they testified about two separate instances the photographs during their testimony about the photographs the officers used prejudicial and conclusory language saying the defendant frankie  went to the police station with people who were also members of the conspiracy the police officers and testifying to the actual ultimate issue in this case was defendant a member of this conspiracy he said repeatedly we photographed him in connection with investigating the conspiracy in the pot housing project that's the issue in that case was there a conspiracy in the housing project was dependent a member they call they said they labeled the people who w along put aside the testimony for moment is there any problem with the photograph in and of itself beyond the fact that it showed the defendant with a member of the conspiracy yes no i mean  who was at the police station for a course that yes your honor i feel like i'm going around in circles but yes it's separate we prejudicial because the fact that someone associates with criminals doesn't make them a criminal it doesn't make them relevant so you're introducing non relevant evidence evidence isn't relevant to a point so yes the photographs are prejudicial all by themselves let me just let me just  point of sale they were talking about parties was in the car with the guy selling johns with cocaine on the seat between them and classy in back with the bieber and he said i was there innocent me and the current said understandably he says brother in law he traveled to the site with him he picked him up and he says see it in closely to this person why not you can use that to infer that he was not innocently present all of those cases which caused that language not all of them most of those cases which quote tease about present at the point of sale or presence on a ship importing cocaine or drugs whether you're saying look on the ship you're close association you all you did this before you seem in you know each other you're a lady and you go into point he's saying i don't belong to this conspiracy i live there this is my apartment and thirteen years you had me evidence of me getting in and out of my car at my apartment that's where my door was i know these people they're my friends i go to it's socialize with them that they're in there i go to birthday parties i play basketball i mean what if you learn on this evidence the government will be able to introduce photos of them at a bus stop or at a birthday party you are playing basketball or the the burden of proof is very prosecutor friendly you know your logic take also to you know dollar sorts of inferences from the evidence that's not this case the defendant objected is soon as this evidence came  the brothers and that's very interesting ana in this case is having a close relationship they often talk about family relationships but there's no no no we don't know how that evidence got in because those cases are never about the admission of the evidence so i don't know how it came in and he says it doesn't it couldn't because when you have contest evidence about whether there's a conspiracy it's always relevant to know the extent to which they know each other it just isn't sufficient but it's there is a big difference between something from me and that he says in his brother in law and then this extraneous evidence of two different it's a two year period and you have two different honor that particular testimony isn't necessarily how it should have been presented the goal of the government was a show that mr agree is to win knew these are the people and through the course of the trial the testimony that came out a law enforcement agent to testify regarding you know the final question that should be submitted to the jury just on the photograph police station if the government wants to show that he knows another member of the conspiracy presume  has many different ways of making that point why isn't it particularly prejudicial to choose to make that point showing a photograph of the two of them together for a police station when one of the members is being charged or involved with separate criminal activity and this case it was a particularly prejudicial because when the evidence was submitted the focus was just on the fact that mr rodriguez a layer was there with other you know members and that they were advocating on behalf of the members that had been arrested so the point was just show that it was a close relationship because otherwise history is still there would even be involved in that process so that the focus wasn't on the horse that it was on the fact that there was a problem with you know members of this community and that mr reed is where was involved in trying to resolve that conflict and the district court was in a position to examine the evidence and determine whether that was prejudicial or not it's not g committed a crime so for example my sister counsel quoted a case in the fifth circuit where throughout the case during the case law enforcement agents sit up in the government question and every question was ok who is this person what were they convicted convicted of and they knew this person ok next question the exact same thing over and over again and they emphasize that you know it's not credible to assume that this person isn't guilty because he knew these other people never guilty and they interact with him in this case in that already known to have been convicted or coconspirators in this particular case there is overwhelming evidence from the coconspirators that mr radius away was the second the right hand man of the drug point owner and then not only did he give orders regarding the operation of the drug conspiracy but that he sold drugs themselves himself he packed his drugs he cut them and made them ready for distribution on small c o quantities does that mean there's i mean that's relevant if we're going to say there was an  and then we decide whether it's harmless and whether there's overwhelming evidence but just on the point of why there was no error introduced in the photograph in the first place the reason there's no can't be because there was lots of other evidence it's overwhelming right no  evidence is and the relationship between that evidence and the defendant in the case that in this particular case evidence was that this person was present with these other members you know these other is there point operates in general and so the fact that he's with these people shows that it's more likely i mean it's out of this is circumstantial evidence but the jury is looking at this and they can make a difference that there was some illicit activity because there was a relationship which makes it more