errors which we believe were committed the third one involved the district court not allowing us to explain the relationship that the owner nonsense had with the government's chief the testimony sidebar was had government was directed to lay foundation as to how the government's main witness know that the defined in this case for a loan or not is was involved the witness had given at that point in time it was pretty substantial and there were a lot of them princes that could have been drawn from that and if you look at what mr leona non school subsequently convicted of it's pretty clear that the jury could apply them in a discriminating fashion well there is a presumption that the jurors will follow the instructions but when you look at the subsequent testimony that was stricken from the record by the district court  at some point you begin to question whether or not the jury is presumed or will call that presumption concerning the the the instructions are given to it if you look at the testimony that was stricken  district court involving six b or six or seven or i'm not even sure what it was was that the government was arguing there that testimony was pretty substantial that testimony went to the heart of the credibility mystery only not just it went to the it went to the knowledge those were the issues that the jury subsequently made a determination of because if you look at what he was convicted of he was convicted of aiding and abetting on count five and the elements  that were important in this whether or not he intentionally or knowingly assisted in the in the movement of the one illegal alien and i think that's where if you say  the stricken testimony of the two witnesses at the very end of the  anything between between the defense witness first and the prosecution's agent's isn't that always well it is always the case i agree with you there but when you introduce evidence into the case which is subsequently excluded and that evidence went towards the prosecution's case but they have an unfair advantage at that point in time where if you begin to weigh you know all this side being the prosecution side and this side being the defense side and all things being equal you add the prejudice over here this becomes a lot windier and this is what we're talking about we're talking about whether or not that prejudicial evidence that was subsequently absolutely absolutely and this is why i'm saying it was put in for and unreasonable not because ability is always on the table well but but the reason that that was put in once was unfair the subject you know just said well not looking at it now it probably should be for men wasn't totally off the wall well you know i disagree i disagree because if you look at took place prior to that time  know the government's counsel refused to tell the court why they were bringing this information in it's in the record there the court asked on this council why you bring it in and governments council says i don't have to tell you i told the court i believe it's coming in i can't show you that i'm relying i'm just talking about the whether or not there is a responsibility by the government or by any lawyer in the court to say look you know we've got a problem coming up here there's this issue and that's really not the thrust of my argument today that they should have told the judge on scene that it was pre planned ok when the judge asked you know why are you bringing this now and the government counsel says i don't have to tell that but if you look at what took place in this trial you can have an inference of that you look at the border patrol agents that came in and testified they all testified as to certain things taking place which became very innocuous in cross examination the things that they instructions given and also the whole issue was revisited after the trial by the district court judge in response to a motion for a new trial and she determined that even cumulatively  looking at everything that happened in the trial there was no basis for a new trial motion so we begin with the fact that the standard reviews the discretion of the trial court the one who's sitting there hearing of testimony seeing out of the jurors reacting and  going from there the first issue was the testimony by mr cologne which turned out as was presented to be rather different from what he had been saying in the interviews in his change of  ma'am basically what happened here was that mr clone got up as our testimony started testifying and he was expressing himself in terms of i think right believe so actually the it was speculative but it was purely speculative if we give the jurors any credit at all they were seeing that at least as it was being presented at trial this was not firsthand knowledge and were able to give it as little credit as it was due at that point but more than that as has already been pointed out the court struck that testimony specifically instructed the jurors you're not to consider any of this speculative material that was reinforced by the standard and structures about how evidence is to be assessed you know at the end of the trial and we can tell from the record that in fact the jurors now follow those instructions because what do they do first of all they completely acquitted on count one which was the conspiracy count t they convicted they rejected that and so to the extent that there was even speculative testimony from mr cologne well i got paid so i'm assuming that the defendant got paid they very carefully extr that testimony put it aside and only convicted on the very basic charges of harboring and transportation the what's your response to opposing counsel point that the testimony went to the by video deposition was read back to the jury and he's presumably said that the coyote of the guy brought him across the border and took him through this particular house had to go back through some back alleys and so forth and then the guide knocked on a particular window in this particular house and told the person inside the people are here then who comes out a balding person anyone ever think like that and that person  from because the material witness was actually deposed and then allowed to leave he was not a trial and so there was not that kind of eyewitness identification done but to the extent that the only person who is living in a house was who was an elderly balding man was a defendant and it correlates with his own wife's testimony about having heard a sound on the window he went outside the conglomeration of evidence clearly identifies the defendant as being the one who did this he then comes out of the house in response to this whispered message from the guide takes the people around to the front of the house and directs them specifically to these abandoned cars in front of the property testimony and it's specifically about one of the surveilling agents that is balding me and the same balding man who's the only one living in a house directly the people in the van in the back yard open the van door closed the van door so we have essentially eyewitness testimony supporting the council with us convicted that he was directly involved in placing him in a van which then left and was stopped on a road by the border patrol so we have very substantial evidence quite apart as far as the counts on which he was convicted mr clone really had who was irrelevant because of all of the evidence from internal witnesses and the surveilling agents and the corroboration from even the defendant's own there any time the whole idea of being to dispel the appearance of a conspiracy that this was you know a hill a whole transportation what was it that was excluded and why because the only one who was going to testify that to that was the defendant himself it was basically self serving he line is that whether or not it was admissible to begin with it clearly was not prejudicial because of much the same kinds of factors we talked about strong independent evidence a curative instruction and ultimately the defendant was