trucks that they had trucks these statements went to the very core of the government's case at issue according to the prosecutor's closing argument after all the testimony was heard at issue was whether or not mr diaz knew that his said i haven't seen this person's name anywhere in this andras i haven't seen his name anywhere and they do say that there's a discovery mail but the record is silent about where that discovery mail went or or is there anything implicit in that hour what he's covering email would be is there in anything any understanding that the parties had about what that is and i have looked for that part of the record in the national e mail me just what is he talking about i think that it must have been a mention in the police report or an investigator summary or something like that and that may have been turned over to mr pereira but the record in front of the court was whether or not in the analysis that should have been conducted is whether or not there was a preponderance of the evidence that the four elements of this court has previously position on whether it needed to be evidence from which the court could rely that they did at the under as was involved in this conspiracy as opposed to a conspiracy involving something else which may show and i find that conspiracy the conspiracy the mr diaz was involved long before to be admitted against him should be the primary concern before this court we don't know if they signed it or whether that something evil assistance to me came up with that among the case law from twenty years are you saying that's not the mom well i'm not sure that it should be the law and i don't know that that that there there should be some attachment to mr dns and here there isn't that right has been and i think definitely conspiracy th involving we have this witness is and the defendant against whom the hearsay is being offered well keep going what is the evidence here that would would tie in or what your position on the evidence here that tie him to this conspiracy so that well i don't i don't think there is but that's what i want to address what what do we know and why is that not enough so what we know your honor is the torah laws and and and and both in this conspiracy he says no that's that's very clear from the record and so does that satisfy by a preponderance of the evidence those four factors so the the standard he's not a we have a situation where i understand statement which is so inflammatory and so germ a name to the main question at issue that the mr d has a voted himself to trafficking marijuana and that if you needed trucks that they had trucks that and andras it said that those statements go to the very core of the case and at that point your honor whether or not there was an existence of conspiracy was it made by a coconspirator how andras how was he a coconspirator with diaz that question was not answered it was not answered in any way that there would be satisfactory to any level of evidence much less a preponderance of the evidence was a statement made during the course of a conspiracy again there's no evidence of that and the stay was not made in furtherance of this conspiracy the conspiracy to traffic marijuana and so for those reasons your hon we would submit that there was not that the court abused its discretion by failing arm analysis very good on that harm analysis certainly and so as we look at the at the harm analysis whether or did the prosecutor refers to it in its closing argument the prosecutor says that the one question at the end of the at the end of the case is whether or not whether or not mr diaz knew that his truck other evidence of supported on the other evidence or as we look at the other evidence the other evidence was extremely contradictory and so i would i would ask the court why would the government call this witness the only reason to call this witness was to bring in these two statements that should also contribute to the harm in else this this witness contributed nothing else he was a methamphetamine trafficker and they and he expected to get a sentencing breakers a result of that and so that i think should give the court should decide and i think that it is i think that as the court looks at this i think that the government's case may have been in peril after they called mr roach ok and after they called mr greer mira's that that evidence was in direct conflict with each other mr roach has said that he had never dealt with mr diaz even though as far as the trafficking marijuana went that he never dealt with them even though they had a longstanding relationship he said he never dealt with mr diaz until after he was sentenced  received a sixty months in egypt bishop went to visit him in georgia and showed him some pictures and then he realizes that the mr diaz was indeed involved in the trafficking of the marijuana mr gray ramirez yet are being coconspirator the one who said that andreas was not involved in this conspiracy says look i didn't deal with a roach he called on i had nothing to do with it but he hired a lawyer for that is that is evidence that that i think should cause some concern and as the as the government looked at the state of that evidence they needed somebody else they needed somebody who wasn't going to be contradicted and that's why they called towards and so i do believe that it contributed to mr mr diaz's guilty verdict and for that reason there was harm to my client and it did affect a substantial was a separate conspiracy mr diaz was not accused in front of the jury got accused of the meth and fed him trafficking it was a separate issue a separate conspiracy and that statement the statement made by under this methamphetamine trafficking was was a separate situation and i and it's troubling i think that that conspiracy and i don't think the government should be able to use any conspiracy to tag that to mr d z to introduce that kind of evidence against him i thought that three different witnesses talked about mr diaz involvement in tracking marijuana at least three different witnesses  verdict so the fact is other evidence i think you're saying is is not sufficient but there is pretty seems to me direct statements from other witnesses that would weigh heavily on the side of the government and yes to say that any validity into the evidence from hearsay from andras was harmless isn't there at least when you allow direct evidence you want to say that some of it was somewhat inconsistent from other witness s that your client was directly involved in this conspiracy with marijuana so it was there was there was direct evidence from other weapons yeah it's a real problem here is was it on and greg america's best testify that d s was present when drugs were loaded onto the truck and that's fairly direct evidence from two different people right but it would and then we can infer the jury believed them well we don't know if they believe them they believe torres or a combination of the initiative each side is a case where this court is set and inspired of two witnesses directly identifying the defendant as being involved in  ors and so i think that it's a problem to expand that on the harmful error analysis where has this court said even though we have two witnesses that say he was involved it's it was harmful error to admit conspiracy it was like the judge wasn't all that sure about the conspiracy either and even gave something of a warning unless i'm confusing what part of the record this year is that you can tie all this up later do you have any i'm going to let you go continue on if it's not there we're going to have a problem are you sure it's there and the prosecutor responded i'll double check your honor right now i don't have a report but it's his move right now i have a report on my desk  medina but after the court says that and they're on a break the discussion die so i'm not going to speculate on the record but one could say well it was produced or that they would have come back on the record because the court said they would have had a problem but the factor of the matter is after that court voiced its concern that issue that issue die for lack of a better chop but here's why the statement comes in under the non hearsay exception first they were both there meaning dearest and andre's and andreas was doing the talking and he was recruiting tourists to traffic marijuana he said that was a marijuana trafficker and that tourists who we know was a driver and did not have a truck that andris said that they had trucks available to traffic or let's say to transport the marijuana that was the extent of the statement but the government's burden of proof to get this evidence in was low specifically it was preponderance of the evidence nothing more and the four elements were satisfied first that limited statement didn't establish the existence of the conspiracy other witnesses and the government's exhibits did that and i'll explain that a little more detail later but secondly as i said before andreas was a coconspirator taurus testified th maris numbers in his wallet and said they were going to pay him that's on for forty seven and for seven july it's in consequential that graver mirrors didn't think think andre whom he had met at dia's his house was involved the law is clear that a coconspirator doesn't have to know all the details of the conspiracy nor does he have to know every one and he just has to knowingly the evidence supports the fact that grover maris was the one dealing with the contact in mexico regarding the drugs agent bishop described taurus as a transporter which makes sense because he was a driver he also said davis oversaw transportation and other details on the words he sort of had a white collar position and he also said andreas was on the receiving end which i take to mean in the evidence suggests that  made drugs got to dallas then did a step to the third and fourth elements are also sat a fuck satisfied andrea statements were made during the conspiracy and further to its purpose this wasn't just chatter as i said before tourists drive trailers and andre's told him about an opportunity to traffic marijuana for an existing operation with a truck but even if this court finds it somehow error occurred it was harmless does the ruling to in effect dius a substantial right he hasn't shown there's a reasonable probability the to the testimony contributed to his conviction and along the lines of rejecting this court also must reject his attempt to touch and a confrontation clause argument for the first time under hamas are the precedent this player in the circuit that a party cannot raise new dishes on the apply brakes which is what this happened but looking at the harmless error which is one standard but couple eyeing it with the insufficiency argument which is a different standard the same evidence negates both his sufficiency arguments and that of the evidence was harmful would you  both of them require this court to look at the evidence and that evidence shows that it was undisputed that dia's says company trucks were involved in the first and second seizures and his signs were also on the third seizure testified at length about dia's his involvement in marijuana trafficking for example a row say discussed how d s directed him and how the operation worked he said more than once it was the same thing each time drug excuse me that the truck would be delivered already loaded this time also agent bishop explained that davis was higher up in the organization and not only did he provide the trucks but he recruited the drivers he organized the transportation of the drugs he dealt with others in the drug trafficking organization and after bremer mare's paid him he was supposed to pay these drivers but one thing that's very important that nobody think is that we had the unusual situation where the defendant actually testified and so the jury heard dia's himself trying to explain away his innocence which clearly the just so clearly the jury  rejected but he talked about how he was a distant and he didn't know what was going on with the transportation and what have you and if you read that testimony you will see that some of his in some of his discussions were fairly feeble particularly in light of conclusion should be drawn from the court does also failed to satisfy his high burden of proof that reversible plain error occurred in conjunction with the district court's jury instruction there is no likelihood that a grave miscarriage of justice occurred here the failure to mention dia's excuse me on tracing the instructions was not the difference between acquittal and conviction as do is recognize the district court testified and he had and the court addressed facts unique to that such as their prior convictions plea agreements and hopes of receiving a benefit in doing so the court stressed about weighing the credibility of these witnesses and in doing so it invoked tourista statements in relation to dia so in other words tourist was specifically mentioned in the jury instructions and torres is the one who had testified about andre course not only did not testify but there was scant testimony about how she's made the destruction if indeed on this would that would be relevant would be a coconspirator testimony destruction to be something about he coconspirators i don't know of any pattern jury instruction like that i'm just seems to me that it's apples and oranges to talk about the credibility of somebody who's being quoted from outside of the was something like three pages talking about how it's the jury's province to weigh this evidence to look at all the witnesses carefully and what not and so in that bill in conjunction with that taurus and by virtue of tourists is testimony andreas isn't braced and here as i said before the court repeatedly cautioned the jury about the importance of the instructions and this court presumes that a cruz so therefore they're the same people that's what i'm trying to say it's the same truck explained that this is the other time so that that is the problem is that he is describing a different conspiracy it's not the conspiracy that involves the marijuana it's the conspiracy that involves the conspiracy there goes ramirez it doesn't involve mr dia he says he's not a part of the conspiracy and so that's that's the problem and that's the that's the error and at some point they should have gone through the floor the fo factors i had they gone through those four factors they wouldn't have been able to produce any independent evidence the government says in their brief on page thirty five of their brief that they need independent evidence what is it what's the independent  it's not their agent bishop's belief cannot be that independent evidence and you explain to us what your gut said on the stand and why that exposure of his credibility to the jury did not hurting also one he wasn't asked about the on this meeting so he he was he was silent about that he wasn't asked about that and if he didn't he didn't say anything about that either by the government or by his own own that there are two separate issues here was he harmed by the admission of this evidence is is question number one sufficiency is is question number two so i don't believe that mr diaz presented any evidence to help the government's case was he asked to explain for example the statements that that russia in america made about they we saw him he was there when the trucks were loaded this on this trip the truck was already going to be loaded and i think so whether the jury believed him or not he also had to climb a hill that he shouldn't had to climb because he had somebody saying that his cousin or brother or friend or associate had said that these m loaded his life to the trafficking of marijuana and in that colors the whole way that the jury is going to look at this man as he testifies he is not somebody who's achieving the american dream he is somebody to trafficking marijuana and i and that's that's a it's an inflammatory statement it's a it's a statement that that that should not have i have come in was it mr nears that test here i don't think