morning runners david miller for the defendant in this case your honor this was originally i thought an energy brief and i didn't think i would be doing oral argument when you could use speak up a bit sollars yes this is originally an anders brief and i didn't actually plan on ever doing oral argument on this case but in reviewing the the briefs that report fourth i'm thinking the court is taking a look more at the four or four b issues in this matter and maybe like some expansion on sold meth to in the spokane area and he says he doesn't sell to anyone else and that was what the judge rice hung on and allowed some evidence to come in based upon the alleged i sell my methamphetamine for certain amounts of money the judge basically says well that's him admitting that on that day that he made a transaction and then if you take a look at what the two officers stated in prior hearings they had mid that they didn't ask any questions about the incident that took place on july eighteenth yet in the in the court the court rules that the government may not introduce evidence of the defendant's lead's drug distribution prior to july eighteenth two thousand and thirteen  but then the question was asked at trial and it was allowed in as far as how much he allegedly sold meant pregnant with the morning of trial though the day the morning that the trial started they went over this these questions on in the in the initial most that the other side of it you know the evidentiary motions change all the time during the trial what you say one moment circumstances can change or you can reconsider it up until the time that it's not just because you say at one government's case in chief that was during on the initial direct questions it's going to take place after the defense the judge said certain things could come in that morning he did and so then the question is did the government violate the district court order but the judge said i don't know if the government violated as much of the government's witness violated he talked about the fact that what you could what the again what i said exactly what the judge was pretty specific about what the witness could say and he pretty much just set that i can't really argue with the court on that you're the same transcript i read so that's correct you know the part of the prior order that judge rice entered on these the question again where i asked him if he sold meant to anyone else in the spokane area and he said no i don't now you can take that question two ways if i were to  ask you have you did you have a car wreck this morning and you say no and if i say it's more of a question along the lines of when to just stop beating your wife you really can't get out from underneath the question the way the officer phrased it and the way it was phrased on the record mr fuentes could not have gotten out from underneath that question who who else just so methamphetamine to unspoken area i don't sell anyone else you can take that to a case i don't sell to anyone ever or i don't sell to anyone else except this person but the way the question was phrased you can't get from out from underneath that and that is what was relied upon in order to allow this evidence  in and so based upon that judge i believe that it was improper and that prejudice the jury against mr fuentes i really don't think i have a lot of other issues i can even bring up i went through the record it with a fine tooth comb over the past several days and i just didn't see any other reason why the court might want to have me here today to but there was an argument of prosecutorial misconduct there is a there is an argument about that and you know we we maintain the i stand on the brief that i filed judge we didn't we didn't file a self image brief or a response of brief to the government's because we believe that we covered all the issues properly and we didn't believe that we could really stating else extra that we had  defense attorneys objections should be carried forward even through the point of the trial and he objected to that coming in i don't believe that objecting when he raised it before trial judge rising to let it you know the morning of trial he did he had this discussion that on completely hung it on and that's yeah but it seems that the whole argument when you when you analyze prejudice it course it was bad for your client that that's not the that that's not the and that's not the analytical paradigm for prejudice first versus probative i agree cuz it was like probative off the map and then of course it was bad that way but that but but the relevant if the relevance outweighs that then that and it was limited to that particular time but the day and you know i don't even you know it wasn't it wasn't a particularly weak case because it was controlled by and he got the dope coming out he didn't get the money later that's true i can argue a little bit about that judge it wasn't the best controlled by i've ever seen they didn't ever see my client having any illegal drugs the person the love that the kids in the car probably didn't sell it judge the person that sold the drugs to the c i said he got the drugs from the laundry room and that he went to the van to buy a i pod or an i pad now if you're owed a drug dealer judge and you don't want people to know that you're not really i guess i don't want an adoptive admission we have that and a later case here i'm not ok if you don't want the person that you're selling the drugs to to know where you've hidden the drugs your big supply of drugs you're going to say i don't have any here i've got to have someone bring them and then you might just check somebody and say i want to buy your i pad he just wings and not even knowing that he's there as a ruse for the person selling the drugs and then he goes and buys the i pad then he goes down to the lodge room like he said picks up the drug quant was supposed to have and brings it back and sells it i mean if i read it but did the jury think that you might not but that really was an argument i mean if you're drug dealer and if you've got something that you know is illegal and you've got something you know that i guess i'm going to be out of time but if you got something you know that someone may even kill you over that would be a reason to maybe hide where you have it hidden i've got it in the locker room but i'm not going to tell him that i'm not going to leave here and go to something back and appear with some drugs i'm going to i'm going to make a ruse i think we have your argument when we're you save your time here if you want t maid please the court george jacobs on behalf of the united states attorney's office for the eastern district of washington your honour's the government did not commit prosecutorial misconduct in this case because the government rice and we went over the specific statements to warrant that were in deputy houses report because i wanted clarification as to exactly what i could introduce during the course of that trial and judge rice concluded that those statements were admissible under the federal rules of evidence eight zero one d two a statement by a party opponent a party admission so the united states did not commit prosecutorial misconduct any listening that testimony from deputy house moreover during the direct examination of deputy house the your honour's the government directed deputy how he specifically to the july eighteenth two thousand and thirteen transaction in framing its questions not for or for be evidence because that's the transaction that was charged in the indictment so that's part of the crime that was alleged in the indictment the it related to the distribution of that times very similar prices and quantities and your honor the the the the admissions that the defendant made to deputy house he also is judge wright's pointed out went to his current method of operation and he spoke to paying seven thousand dollars a pound for it charging nine thought thousand dollars a pound for it and the evidence that was introduced during the trial if the courts if the judge is recall your honour's a photograph was introduced with a tupperware container of what appeared to be approximately a pound of methamphetamine  stop well at the spokane discount than the i hop and then on his way to sunnyvale washington he made a stop at a at a business as well and if memory serves me correctly there was a financial transaction at that at that place so you're all right also your honour's i'd also point out that after the guilty verdict was rendered  were three of the specific statements that were introduced at the trial of the defendant's statements and judge rice in ruling on the rule twenty nine and rule thirty three motion denied  motion and as this court knows the court's power under rule thirty three a is much broader there is under rule twenty nine and so the court carefully considered those statements and determined there was no miscarriage of justice case specifically we have police officers who are telling one story at pretrial hearings and telling another story at trial normally were you lying then are you lying now is a great question to ask and that's defense lawyers we love it when we get a police officer making one statement at one time and another statement in another how did they differ hard how did how did this differ by the police the officer said that he did not ask mr fuentes about the incident on the eighteenth he stated that categorically and never didn't never change that statement again but then managed to get in i sell methamphetamine for certain amount and that's based upon entirely upon the when you just stop beating your wife type question that was allowed in by judge right now for the united states to stand up and say that this is an example of his current methods of operation there was no current method of operation the eighteenth was what was indicted the eighteenth was talked about a trial nothing from the eighteenth and it was a rest on the twenty sixth so he was arrested seven or eight days later it's not like he had a ongoing operation after the eighteenth that the united states knew about  sort of stand up and say that and that is his current method is a bit disingenuous it's not it had to do with the history and that wasn't allowed in under judge rice's ruling and thank you ok all right thank you counsel we appreciate your arguments