week with a court asking for supplemental briefs i realize that will be at the station to be made at that time but i think that's more a better solution in the interest of justice than waiting on a twenty to fifty five min three is the admission of the hearsay statements and they basically say it's much ado about nothing that the evidence was overwhelming we strongly disagree this case boils down to a swearing match asked the question twice and the prosecutor has a duty to ensure a fair trial here and again they say well much ado about nothing because we have all this other evidence but what do you concede that the prosecutor has a duty when he has a solicitor that the the two sentences and which mr rodriguez says my wife told me i could buy methamphetamine from the defendant well i can wear what i find support in the have the opportunity to ask for whatever remedy they want and it's obvious that once the court denies the motion to strike and then the issue becomes what for what purpose is it offered and i think the jury the jury sitting there they've heard the evidence they have to assume it's been offered for the truth of the matter because they have not been instructed otherwise so then we come down to the test the ultimate test and that is whether or not it's more probable than not harmless and we get into measuring that the two key witnesses and it's basically swearing match by two witnesses frankly neither one has more credibility than the other and  standpoint i still am alternately going to even if i bought every argument you know that right away i still we still have to get down to what the evidence was that went to the jury and if in fact that the evidence was  you're faced with a harmless error issue and here you've got two people in the car right and left it two hundred twenty four that's the amount it was between fifty and five hundred i forget the exact amount no no fingerprints of anything but they're both in the car and it's in a secret compartment in the car and i guess what there's something hanging from the from the driver your and your client says he doesn't know where he's going and then when he testifies his testimony is is different than not so for whatever reason the jury's got to evaluate that this colorado contact and there's evidence about some phone calls on that cell phone from colorado right know i guess what they did jury does have to make a credit any way you look at it the jury would have to make a credibility decision about whether they believe that codefendant and i'm just having a hard time seen how that that that prior statement would make any difference in the long run how with that would really be i guess the most damning way that you could look at that prior statement is it makes your client a drug dealer absolutely two sentences in which basically the witness says i was told by my wife that this guy is a drug dealer i'm just wondering though how that would really factor into when you've got to stop with the police there's two of them in the cars but there's a gun in the gun in the car there's a whole bunch of dope in the car there's the co defendants testimony there's the cell phone thing i don't see how the jury would even really be concerned about that there's plenty of other damning evidence that they have to decide who they believe are not understood have however rodriguez was the only one that calls my dad for my client the defendant a drug dealer and then when he says the wife says as a drug dealer that makes the second person until we have that we only have rodriguez's testimony no one else testified we don't have what no one else says if i concerning dealing drugs with my client we have no no fingerprints of anything in the car the gun the drugs the complete glove compartment the it sounds like you know pretty much however colorado as to is going well there is going he said i'm going to colorado i don't know the city when i first watched what the government says makes sense but when you examine it more closely it can be picked good morning please the court money was john lopez i'm an assistant united states attorney in the district of arizona represent united states in this matter on appeal and represented the government at trial with respect to record although i did not request a limiting instruction and perhaps i should have explained to the court that i was trying to stuff the context of background for how it was that mr rodriguez came to know the defendant and to set the context for their relationship seems to pretty well established that he's a drug dealer you know i mean if you know why couldn't it just be well i my wife in her case me to them or something along those lines your honor and now that he said  direct evidence that the defendant was a drug dealer mr rodriguez testified that he purchased drugs from mr harris from the defendant he sold drugs with the defendant he lived in this apartment and sold drugs out of his apartment that his entire relationship more or less was based upon the use and distribution of drugs and that was the reason that these two were together headed to colorado to deliver methamphetamines the government did not rely in any way on the one statement that the introduction between mr rodriguez mr harris was based on on a drug deal and in fact i did not mention the government did not mention once in opening or closing statements well those are all good reasons why it may not be harmless error but that still doesn't really that's not a really good reason as to why it was done in the first place i mean it was  the question of how it was that mr rodriguez haint came to meet mr harrison yes i was i knew that the answer to that question mr rodriguez had told me previously during during our meetings and for all preparation that he first met mr harris when he bought rugs from and that was the only way that he might be and what would he tell you about this statement of the life he did not write to so who was a fuzzy and the workpiece and some of the other cases that were cited to the court i raised the argument because it was not my intent to give in straight that the defendant was a drug dealer through the testimony the out of court statement of mr rodriguez his wife it was simply to provide background context to inform the jury how it was that mr rodriguez first mr met mr harris and in fact mr mr harris his testimony was that he first met mr rodriguez through mr rodriguez his wife but mr the defendant testified that mr rodriguez attempted to sell the defendant food stamps fraudulent lee and that was their first  defendant that he sold drugs from the defendant that he sold drugs out of the defendant's apartment with the defendant he testified at link that he had a year long relationship with the defendant which w based upon the use and sale of drugs other non hearsay evidence which demonstrates the defendant's guilt not necessarily that he was a drug dealer directly but was in my view a very damning piece of evidence was that the defendant had maintained all along that his defense was that he had been duped by mr rodriguez to unknowingly operate this red car to drive it to colorado with no knowledge that there were drugs in a hidden compartment or that the person purpose of the trip was to deliver the drugs he told the f b i agent the day of his arrest in his post arrest interview that the only reason he was in that car as were two of the defendants if the only reason the defendant was in the car was to drive the car because mr rodriguez didn't have id and was afraid to drive the car that was he's going to see an explanation for being in the car when he took the stand and testified at trial he said that mr rodriguez actually began driving the collar auto from phoenix on the day of their arrest and it was only when mr rodriguez is driving became so erratic as to be unsafe step to defended convince mr rodriguez to let the defendant drive the car that was he undermined his defense it was own testimony at trial and i submit that that standing alone with his presence in the car would have been adequate for the jury  side from failure to get fingerprints you would think with the cell phone records they would call the numbers and find out who's making the phone calls and that solicit one witness in addition mr rodriguez by the way mr rodriguez the air it in shows had possession of the cell phone during the subject period of time i would like to come back to the question concerning plane air and point out that if the risk plane error here that has been waived by the government because they have not weight raise ill have to discuss is the panel what they're you know i i can't commit to you that we're going to necessarily wait for any communication present you've indicated what your intent is hundreds that will be something that we'll discuss thank you