suspension some of the other circuits have spoken on these issues perhaps hastily i don't know but we very much appreciate and commend the court for taking its time and approaching cautiously so that if the opinion that's reached in this court may be the proper and definitive opinion it appears clear again without citing emmeline tool but it appears clear to me at i am lying to decision is very well reasoned and i've read the i've read the briefs on for the reconsideration and bank we believe that upon going to the united states supreme court if it does that the court will personally and honestly i think it's i think it would be important to permit the invite not because we disagree with the opinion but we believe that it should be aired very doubtfully and  that every side gets a fair shot now of course and probably go to spring court eventually i don't know but we believe that this court has a has been very very cautious and we believe that's important because i think any you think the and eventually i suppose maybe in this case the court is going to come out with another pin you know it's going to further define it in others other issues that are still going to be pending over time with regard to booker you know for example like what is an admission as opposed to a conviction by the jury but in any event we believe that booker clearly requires every man here but i want to point out that our second issue on appeal we believe in very very strongly argue that the second issue would make a book or not even necessary to be addressed because we believe that the second issue would require a complete reversal and that's involving the evidence admitted on cross examination of rarely do we see you know and this i should see subsequent conduct or things that happened seven years later try to fix something that could be brought in that effect something seven years earlier ordinarily we see prior conduct but here we see something totally remote having to do with something totally different not even in importation case plays you correctly the judge of originally ruled that the evidence was too remote pardon me he read she initially ruled that the evidence was to her yes and then she allowed it given the fact that we are just paid cash in small bills for a business that he didn't seem to have anything to do when he had all this pipe that he just abandoned it made no sense to buy it to begin with from him imported into mexico is that he was going to take that the evidence against vargas you know prior to his testifying that is because the cross examination was very very slim and certainly it wasn't harmless very important this kind of thing should be brought up but not only did the prosecution think it was very important otherwise they would have brought it up but i think it was probably known to the prosecution at the time that they were kind of stepping out o line a little bit i shouldn't say not ethically but that they were going outside you know they are full of a little bit and that if they would bring this up maybe prior to that there was nothing appealable but this is the kind of thing that that would certainly stand out on appeal  but given the fact that she apparently found through your client's testimony that he did open the door and that it was now admissible at trial from peaceful purposes how did she have used her discretion in doing conceding but not admitting that it was something to open the what the judge's decision or this ability of of use discretion in this case yes it is you're on it or did she of yours or discretion we believe that it was an abuse of discretion since the only you know the most powerful inference that the jury could have found here was that he must be guilty because seven years later under entirely different circumstances you engaged in a cocaine sales discussion it was way too remote as diabetic it was admitted to prepare for was admitted as i understand it it could be anyway under for a for b for knowledge of an talking about a gas rig guy if if there's something there i mean i think so your honor if if we take a look at it and that's passion and i thought about that this morning if something we could do is something we do in the future can be applied to something we've done seven years in the past couldn't we not be found guilty you were accused of anything having to do with cocaine whether or not we knew about of the i think the into i think the important thing was what did he what was his knowledge with what i understood the purpose of the evidence was for impeachment purposes which is different to show that what he said on direct examination to the jury i am a law abiding guy is not true it's impeachable by admitting evidence that shortly before he was arrested he was engaging in a drug distribution i transact i'm not certain that is exactly what the court said i wasn't just to catch him in a lie it was more to show that he had knowledge he had motive the intent things like that well i'm looking at from an excerpt of record five fifteen and at that point i think there is an argument with regard to whether or not this is the proper and improper line of impeachment in the courts that's all right i'm going to find that there is sufficient at sufficient evidence that has been introduced let me put it this way the defendant has testified it's very crucial testimony and the government must impeach the defendant in order to be able to prove their case and i'm not sure whether she's talking about admitting it strictly for impeachment purposes or whether she's now reconsidering her prior forum for  i don't know that that was i did by either side of the letter but please keep in mind that there was a jury instruction here and i think the jury instruct your selection of your instruction is instructive upon why it was it was just to show that he was a liar you know that and two weeks ago he said when i go to baltimore the standard limiting instruction that i made many in this evidence only for the limited purpose of considering the credibility of your own i believe that it was to show t disclaim that he was a drug dealer which is the custodial first part is the second part says you can use for a for b to show the knowledge like a mistake whatever yes i don't find the record shows exactly what the judge said i don't think and i'm not sure except on the jury instruction and the jury instruction was the four zero four b that's correct yes it was you know again if this was the day after ninety four for two weeks before that's something else but we're talking about something so remote but you know and even even if possibly it could have been admitted for whatever purpose question is short of and that's the abuse of discretion we believe that it was so remote that you know the  over a period of time he had come back numerous times he passion to the border and when he left footprints or you know he left evidence or he was coming back and forth doing whatever with regard to the speedy trial motion brought to trial within a certain period of time was the argument and the decision by the court which we we stood by was that he was absent to himself the turning was in mexico no doubt about it in fact kept coming back and forth doing whatever  nothing illegal was never shown but i don't think he fled again you might make an inference that he fled but you know when one sleazy runs like hell and i'm not certain that he did that government called thirty six witnesses to the status of the defendant purchased the business which was supporting cocaine by the time between one thousand nine hundred three and one thousand nine hundred four so what what this is of course is blown up in the course of the appeal that this was just a sliver of what actually  the evidence with presenting the case but the defense of course testified chose to take the stand and it's just common correctly recognized the judge advised the defendant beforehand that there was a possibility that as a result of that decision depending upon the way that he has  think both situations can happen here but i get around question was raised well how does what happened in two thousand and one relevant well the defendant may development through his direct testimony specifically when the defendant took the stand he testified at length about his background about his various jobs caught a farmer i'm a restaurant tour just to dismiss the case on the grounds of the lane prosecution and there was a hearing and the government offered evidence to show that it was a fugitive that's why that was the main prosecution and the defense offered evidence to show that he would periodically  colloquy government's excerpts of record five fifteen in five sixteen where judge barrett explains why she is now going to admit this evidence in light of how the defendant has testified because i find her wording to be somewhat ambiguous i can't tell whether she's saying i'm in minot for impeachment purposes or i'm going back and reconsidering my prior four hundred four b ruling and i now find based on the way that the impeachment instruction or a contemporaneous limiting instruction to the jury i'm going to allow evidence of his street drug dealing in indianapolis not for purposes of showing that he's a drug dealer but to impeach his testimony that he's  correct and a harmless error analysis again this is a case thirty five witnesses who testified overwhelming evidence the particularly damaging evidence of course being that pike that was thrown in that store facility that was used to conceal prior shipments of cocaine and in fact in agent asked to buy a small amount of cocaine as i understand it the then the then offer to sell him one fuel that's correct which would not be a small amount which would be more in keeping as which we think he knew things about cocaine he knew the price of cocaine per kilo depending on the purity he knew about how to use true years and how that worked into the pricing scheme and everything else so his knowledge was a central issue in the case and when he testifies it it  it must be a case where the government can ask questions what do you know about cocaine what do you know about the price of cocaine but there is classic for all for be evidence in order to show knowledge it's not impeachment that's the problem are no facts in the record for us to examine the legal issues on a forum for being there alice and again if it really did get to the harmless air there's a seven year gap however that x can't completely destroy the prototype value of what's e being prize here we have just the con birth which to me is a harder case you want to prove that by virtue of his conduct seven years after the acts charged in the indictment that must have meant that seven years earlier he knew what he and how this all worked so it's really not a seven year gap and that's just happens to be when the conversation occurs and of course i mean i think first of martinez that gap can be closed a little bit here because he's a fugitive the entire seven years of government has no way of showing and there's no way to show that is sort of unclear he had a mother who was in a hospital in san diego and it was some testimony he testified that he crossed the border a couple times and he just wasn't he just wasn't apprehended that point how we don't know how across the border or how this happened crossed the border a number of times for whatever purpose to visit his mother otherwise he would never there's no showing that he knew that there was a warrant except as counsel said that it was soon after is what nephew woods was arrested that stuff no no i'm not certain that it could but again the jury was entitle to look at it both ways there is very very thin evidence you know to show that it and this purchase of the business i'm not certain was so suspicious there originally during the government's case in chief it would have been admitted at that time judge baird would have permitted to its own knowledge except that we have are the line of cases that says you have to balance the four factors one of which citizens are made in the spur of the moment not only by the attorney by the court and if that is wrong and unduly prejudiced the defendant then it should be reviewed by this court as it is and i should be sent back i can't if you can't give an opinion as to whether or not i read trial with this seven year later testimony would result in in a conviction or not i don't know but isn't that what we have to consider in looking at harm  yes we certainly we certainly do but i'm just pointing out along the way that this was someone to be prejudicial seven years later with regard to join what knowledge she may have had seven years earlier and it just doesn't