adequately very obviously the main issue is whether the davis primary purpose test is met but i want to start by saying what i see is at stake here and what i want you to what you want to avoid which is a situation where the case agent can testify for all kinds of people as long as they were on the phone with him telling him what they were doing you could you don't want to have a ruling which allows an investigation with months of stakeouts of months of tales and months of surveillances where the case agent can say well on april third off agent smith was on the phone with me told me about the surveillance told me he solved this suspect do this that the other thing and with me told me he was doing a trash run see certain items and he put them in evidence and i see here they are that's what you want to avoid and i'm afraid we're going to be doing that if if you let the government prevail in this particular case the government the government doesn't really address the primary purpose test per se what they do is they they came and make a couple of claims essentially say that they don't have to do first they claim that in essence away the confrontation clause issue by waiting till object object until the exhibits were offered even though what i did was exactly what the defense did in the fifth circuit jackson case the their answer in brief i'm not arguing that player applied is that a part of their if that's the court's position i'll go with it cal let me ask you about that because as i read the government's brief i searched long and hard for the word harmless on this confrontation cause issue i would think i was a former prosecutor myself you always expect to see that in the brief i don't see that in this brief i don't see i'm arguing harmless here i don't see them are you and i was there or that you failed brief and you saw there was a request for supplemental briefing your case and thank you for your supplemental brief where the court was looking for assistance on what to do in this odd situation where the government doesn't raise a harmless error question but there were other counts in this case that maybe harmless anyway so the question three in the supplemental briefing was on that question can you address that question yes your honor that the reason  not harmless is because the government to account for which was what the exhibits grint directly to account for within they used that to as to bootstrap and as evidence for my cl participation in the conspiracy in their closing argument the the the in the government's closing on the excerpts of record page three fifty four line seventeen through twenty one a large quantity of marijuana was found but he had a gun and i are you really arguing that there was not enough evidence that he was part of this conspiracy with out one day at the post office of the mailing i think that because i think that's something the jury had a right to decide because my client this conspiracy going on for months and months and months my client doesn't show up until a few days before november the not my client and and mr williams were there they were old friends from school days it is in fact conceivable that he went out with a lot of people in arizona carry guns and course my client wasn't was some evidence but the prosecutor argued that the november ninth mailing undercut in new york meant that my client was only there because he was a friend of mr williams defense counsel makes two very interesting arguments about his clients he tries to say that some fashion maybe he just arrived there nov seventeenth at the phoenix apartment somehow he just arrived during all this and discovers there's a big marijuana operation going on that he was going to maybe he was trying to leave  and then he goes on and he says is it visit you or testimony on the stand they don't know very were nine days earlier this is the defendant who was going back and forth to that location you heard testimony on the stand that that  location and minimal furniture was just packing up operation if there had to be in some fashion some innocence at that point time it was gone by november ninth to see what was going on there of course you know what going on there in that what was happening  of course it's not even that the reality is he gets stuff gets dressed up and he's ready to go to do what deliver parcels that day november night england on scottsdale so he's clearly using he's clearly i think that's i don't there was strong evidence there was there was evidence and it might well be but you can't it they've got to prove beyond a reasonable doubt on the sara nelson a constitutional issue like this so and i don't think they can the ninth circuit model instructions require the jury to focus on each count individually you know that makes it clear that unless this is an unusual case and that wasn't given that model instruction each cow is being evaluated on its own and as such one as asking her questions the jury did convict on counts one from four including i believe that later date in november so how do we look at that later date november for which the defend it was convicted and then look at count one the conspiracy and not find that this was harmless though you know even if there were no evidence on the night of the of the mailing that day how can we look at the jury's verdict as of that last count nov and not find it harmless as two counts and one three or ninth the jury is perfectly it's perfectly appropriate for the jury to consider what he did on november ninth in reaching their verdict on the other two count but i think which island the saying is if they convicted which they did that have possession with intent to distribute on november seventeenth then doesn't that support the conspiracy conviction with out respect to november ninth yes but the this is a said it goes back to the innocent presence argument which the government used the november night was there any evidence in the record of your client's involvement in the conspiracy between the nineteen the seventeenth i don't know if i'm if i'm recalling correctly there was not you know i'm not going to swear that but if i'm recalling correctly nothing really happened the tween the ninth and the seventeenth if i'm recalling correctly could i ask you a question about the  statement you've challenged for november ninth do we know whether the statement that this is the tracking number was made in real time in the same phone conversation where they said i see him answer the post  office i'm sorry i got i got distracted by the red light closely so there are two parts of the statement that you've challenged as a confrontation caused violation the first part was we see mr brooks entering the post office in real time on the phone they say we think they say that that's what it sounds like from the trial testimony the second part is here's the box that he sent and here's the tracking number do we know whether that part was in real time to you as you know it just handed over the box or did that part of the conversation happen later do we know there's remember there's two that had been given to him to go and he that's what he used to go and and obtain that box if i recall correctly i have to review it but if i can call correctly he didn't win there and essentially they said this is the box that guy mailed and so he takes right i'm wondering whether when they said this is the box that was part of the initial phone call where they also said here we're watching in real time you just entered the post office and they would maybe and here's the box with this tracking number or whether they thought the tracking number part later the tracking number the tracking number intrusion to recall correctly the incident at the scottsdale post office later or he has to go and take the tracking number match it up with the video ok so whether they mention a tracking number or not the part where they say this is the box that he mailed was that done in the same phone call or later do we know that i wear my memory collection the testimony is that was when that was later after he gets off the phone with him he goes in there after the suspect had left the post office he i thank you very much counsel thank you  not made carefully in the open in the answering brief regarding the harmlessness of the error for the court's reference on page thirty three we did know that confrontation confrontation was violations are subject to harmless error argument and the factual statement is the court has already pointed out better than than i could even there was overwhelming evidence against this individual we guarding counts one and three for certain and there were far more pieces of evidence against him for calif for as well not just the photographs which to be clear that's the only objection that was made at their objections seem to be to the admission of the photographs and that's what the objected to a trial was the admission of the photographs if if the court looks at page one twenty it addresses your honour's question earlier too as to whether or not it was contemporaneous it appears that it was contemporaneous it's not terribly clear but on s c r page one twenty cals i want to ask you you just said something you said that the in the brief as you read it the objection was to the exhibits and not to the a testimony to hear that correctly yes i'm just looking at the table of contents in the governor and the defendant's brief and the table of contents that number i guess is number two und the supplemental briefing and i think that the courts in the court in doing that solved any of the trouble that gonzales floors points out may be a problem this court can affirm for any reason and there's overwhelming evidence as to counts one counts but not have for a right not count four but there's a lot of other evidence about his involvement in the conspiracy on the ninth it isn't just related to those photographs so but that wouldn't get us possession with intent to distribute on then i think not for count for if the if the court believes that there was a proper violation as to that testimony that's correct there are a couple reasons why the photographs could still have been admitted because right now we're at about the photographs that if we assume the testimony that the testimony itself if if it's just the testimony itself and assuming a proper objection had been made or assuming it's been waived by the government then we can see that count for would not survive a the the high burden of the government proving that it was harmless beyond reasonable doubt for the other two counts it's absolutely harmless beyond reasonable doubt and the fact that he drove twenty miles and he was seen driving twenty miles and was tracked driving twenty miles and judge schroeder's well aware of the distances between these things phoenix and glendale there's no reason to be driving twenty miles to a post office and then he's he's driving to another post office in scottsdale to deliver another package and he was seen carrying a package that looks like the other packages that were found at that place so there's lots of evidence but probably not evidence beyond a reasonable doubt without the photographs so let's talk about whether there really was an error then ok so do you really contend that the primary purpose here wasn't investigative not that it was an investor give your honor but as as defendant has has conceded and as we claim as well there's not a clear case on this where you have someone on the phone contemporaneously discussing things it's not the case as defendant has claimed that this is one person who's testifying is to all these other things that happened the postal inspector who was on the stand was the person who took the photographs of the package that had been seized the actual testimony regarding the tracking number as your honor has rightly put a finger on it is problematic the government concedes that but that wasn't objected to at the time by the letter so you waive the problem testimony about the tracking number testimonial that is something that hasn't been addressed in case law before and it's it would have been a best practice certainly to put the person on the stand  testify about that but it's it's tricky because the tracking number itself isn't something that's created for purposes of trial the tracking number has a business records purpose but saying this is the box that mr brooks just brought in is the bit of evidence that connects him to the drugs that are later found in the box and without that without knowing that that's the same box he brought in we have a gap we have a gap but it's  and it was overlooked by the parties at that trial and you had the person who took the photographs on the stand testifying about them there were a lot of connections between the package that was i guess counsel with the remaining time i don't want to come into question just sort of past but question three in the supplemental briefing was what do we do in the situation so i think it's your it's your position as i think you lay down your brief fairly clearly that even if we would not survive morales and then for example i guess from it's not a moot issue in addition to the case because there's a special of sesame to one hundred dollars and presumably he would get that back if that was really katie ok so certainly and on the other two government is required to win even if this panel this believes that it's wrong we decided it's still controlling and then the defendant is absolutely at least a average participant in this conspiracy given the thousand eight hundred dollars he had in his pocket the fact that he is admitted lee a long time friend of the leader organizer he was living in his house his gun as you pointed out on the matter is submitted