smoking pipe and a substance believed to be marijuana in the shoe jury should have been able to hear miss explanation why she didn't question mr thompson when he woke her up at three thirty in the morning to come back across the border and that is that he had been physically abusive to her in the past first turning to the statements of mr thompson these were powerful powerful  one of the foundations of the government's case was that it was unbelievable or unreasonable for someone to enter mexico at midnight and come back three and a half hours later unless the sole purpose was to smuggle drugs in the united states mr thompson statement that mr abbott was in the vehicle when it crossed was the only evidence in the government's case that placed mr obl in the vehicle so it directly yes she was but i think the case takes on a completely different tone if all you had is a driver of a vehicle and the vehicles registered to someone else and there's a passenger in the vehicle there was no nervousness a statements by miss obl she may not have needed to testify in that circumstances because the government's case would have been so weak all they would have had is driver but because of the statements of mr thompson placing the actually when it was crossed i mean the fence counsel in closing argument could have argued anything without these statements such as mr thompson came to mexico and picked her up and the government that can't prove that she was with him and her children were with him when he crossed that he is going to mexico so the case takes on a totally different circumstance if those statements of mr thompson aren't there  a different time i think that's the government's high demand that that was the sole purpose of introducing him for this inconsistency and whether the else is even the inconsistency the point is that he changes all three of the issues and the second one is i don't think there's much dispute that mr udell did make a for three objection that this evidence shouldn't come against her and it's obvious add a separate trial there is no way that refused i think there was obviously remember to raise it at the appropriate time agree with that but again if you're looking at the severance just because we forgot to ask for a limiting instruction at this trial would have made it admissible at a many instruction could have obviated the prejudice in this circumstance particularly when the government used this during their closing arguments said he's got this marijuana i've been smoking material why doesn't she point the finger at him she had to know about it because she was with them all day so you know even though the album instruction the judge said he would give one it wasn't offered the government still used it for the improper purpose in this case and in a separate trial let me instruction w that shouldn't be and there's evidence that you can't exculpatory evidence that you can't present that also calls for a severance and that leads to the final issue is this other wasn't allowed to introduce testimony explaining why she didn't question mr thompson when he woke her up at three thirty in the morning to come back across at the trial mr hubbell told the the district court that she would be offering this evidence that she was abused to case that the jury is hearing evidence that should not come in and she's not allowed to present evidence that should come in and that is why the district court should have realized and the only way she could have gotten a fair trial was to be tried separately  across the state you know try to put this in context one of the things the government was arguing and in closing argument and one of the things that you obviously needed to explain because they're crossing at three thirty in the morning is her testimony was mr thompson came and woke her up in the hotel and three thirty in the morning and she just went with them and the prosecutor made a great deal well why didn't she question him and the answer to that is because he had been physically abusive because i mean obviously the government argued an inference of guilt because she didn't question it and that explains why she wouldn't open tory as to why she would just go along where the government says she had  thompson it's very clear that the whole only reason of his prior statement that he had entered mexico at five o'clock was brought out was to contrast that with the admissible evidence that the vehicle absolutely irrelevant to the to the conviction of both mr thomson in this novel when they in mexico what is relevant is when they tried to enter the united states with marijuana in the vehicle  because it is as the courts where the case against mr thompson was very weak all that we had was inconsistent statement and perhaps the pipe on his person and that's it the reason it was brought up was to show if there's a prejudice in this case it was obviously mr thompson mr thompson was convicted and not until after the conviction came down was the rule twenty one granted so he was the one prejudiced by association go by association but it's important to know that had these been severed the evidence that would have come in would have been essentially the same now the the hearsay statement that's hearsay so was not  it would not have it would have put that car in again our argument was it was it is important when they went in but when they came out however it is important to note that and she tests have been severed guilt just by saying they will hear this certain hour the only reason it's relevant is by time it with further evidence for mr thompson that contradicts when the vehicle actually entered and that's all there was consciousness of his guilt does it has nothing to to visit knowledge or miss not knowledge or even their intent what time they went in it's only relevant because mr thompson brought it up and it happened to be wrong and that's it  and i think it's important to note that despite the fact the government relied on that inconsistency as evidence against mr thompson the district court held that that's not enough so not only is it not prejudicial it's a legally insufficient for i believe he did i believe we did we chose not to miss the case i think we stated our case before the district court and in this case we can see that it was a correct or correct evaluation of the evidence against him  i think that the pipe i think it's important to mention about the pipe that that was brought in again it was the only the second of only two parts of the evidence that he used because mr thompson mrs hobble on direct examination that the government uses it as evidence of her guilt it doesn't it doesn't the government did not say because mr thompson had a pipe they were using marijuana and therefore she knew that she was carrying it when it brought up was that if she reasonable things to point out why wasn't there marijuana why were you suspicious of this unknown man so but for the fact that she raised it it would not have been brought up at all so in the severance if there had been a severance there would still have been evidence of when they when in to mexico through the tax be it would probably not have because it did not anything to the guilt and would not have been brought in but again that doesn't attenuated evidence would it take something else to put that in context of why we brought in the statement that does not provide a proven problem does not provide a confrontation clause pro problem and likewise in this case it did not any obstacle for her to provide the account that she did in fact if anything in his statement now was it not a confession but he desisted her he denied knowledge and he did not implicate her as to knowledge or inten fourteen to fifteen she was asked by her own counsel were you there when they found anything that donald had say yes i was and did you see that yes i did and what did you see a smoking question examination then again and again the only reason it was brought up was to contradict why why this and other issues were not suspicious to her or whether she would deny that they were suspicious so finally whether or not there is in assume a terms about a whether or not the statement came and no structure was necessary because this was not hearsay the original statement was not hearsay and the following statement regarding when they