case challenging the trial court it rishon of summary charts that were completed hearsay without a minute without proper foundation and charges that contain very important very important objective evidence in actually the only objective evidence and key points that the government needed to prove in order to get a conviction if there's a record indicate i didn't have time to look at it  the defense counsel have an opportunity to examine the underlying phone that's not i don't believe that's indicated in the record i was a defense counsel i did receive a lot of sensation was the foundation objection articulated well st was objection lack of foundation and it was overruled by the court was that addressed to the charge or underlying data that was  test well the prepare of the chart is there testify but the underlying data but that pair of the chart had no information about the underlying data was then object it was at the base of the objection or do we know whether whether the district court  how the district court viewed the objection while the you know the issue was presented further to the district court later ron and i did a verdict you mean after the verdict and before the verdict i mean i went back and the district court of the objection was to foundation without and without an articulation that the concern was the underlying data within the district court be entitle to so the district court could have you know was in a position to know that this police officer who was called to testify was take he got this data from the phone company he didn't have specific knowledge of the data he took the data from the confident company and put it in a chart that was what was presented to the judge i think any competent trial judge in this judge is certainly a cop and trial judge would know this this witness did not have foundation to admit this  all they did the court explain the basis for the ruling or just an eye yet it denied it you know i think the court had an obligation if it wasn't sure about the basis for objection the district court had an obligation to your arguments from the from the attorneys which did and other which it did on with respect other evidence wait a minute objection found lack of foundation that means so the document that's being presented means it's a document that's what's the evidence in the document the document contains evidence  because the court the court says there's the we have the witness that prepared the document that witness can then present a foundation for it and it can be cross examined on the on the data well that the court would obligation of the counsel is to state the proper objection and then the court if it doesn't have enough information to rule on the objection it can seek more discussion from the counsel outside of morgan from counsel outside the presence of the jury you know that's what happens in a criminal trial what is the district court method for dealing with that does does this court like explanatory objections or are you instructed to give just a straightforward yes one or two  chart and not hear anything further on it so the judge summarily denied the objection and i did bring the issue to the attention of the court later on during the trial with respect to that exhibit and the other exhibits and so the merits could you give me some transfer of the merits or the merits of those exhibits were argued extensively in front of the bench you know laid later it will during the course of the trolley just frankly i don't see how there would be any any any basis to say that the objections weren't  to explain why these why the information these charts are valid so the charts weren't a surprise to you the charts were not the charts were i think were presented ahead of time but but but the expectation is that the government would later would provide the proper witness to lay foundation for the chart were or they they could try to you know the government argued it could have provided certification but there's no certification of the chart the chart is summary from other evidence so they could have provided the underlying cell phone records and done certification they didn't do that so all they presented was that all they presented for an exhibit was a chart and so the expectation would be well they're going to provide a witness who actually has foundation to testify about these the information these charts so that we can address it on cross examination the government jumps pretty quickly and it's briefing to harmless error this was a wire tap crack so there was there is a lot of other evidence data that was was introduced why your position is this is not harmless right is it about these particular exhibits these three that make you believe it's not well that that the st exhibit one hundred and thirteen this chart of the cell phone calls that's the only objective evidence that my client had in had conversations with this alleged rd participant only direct evidence of any sort that those two had conversations that there was actually known dozens of phone calls in that chart that are listed of calls in between my client and mr kota there was calls at the same alleged deal was being arranged with mr cash drawer where they were talking back and forth so this corroborates convertor that there was phone contact between my calmer client mr kota without that we could say there's no evidence that those two ever talk to each other this is just between mr cashel mr caldwell my client had nothing to do with arranging this drug deal he just mentioned the name of someone in arizona contact and we don't know what it was about him you don't even offer the same person but now we have this char identifies both their cell phone numbers and shows numerous calls and back and forth between them and then after mr cashel gets caught the chart then shows that there is conversations that were m repeatedly to call my clients and so hey hey the government can say hey you know obviously he's involved mr kodesh trying to call him right after mr castro gets arrested and there would have been any other such evidence otherwise not something those calls were tapped and played no no there was no call between my client mr connor that wherever tenant that they the calls after the stop in which it's pretty it's pretty obvious from from what what those because those were highlighted in the chart briefs that one should that were not tapped or one well if they were highlight or not highlighted there's a lot of tap calls between my client mr castro many tatt calls a lot of them more about undisputedly legitimate subject matter in then there is alleged drug conversations that were based on code no specific mention of drugs but no evidence otherwise of contact between my client mr kota kowtows that the car that showed up the white unoiled or whatever was in your client and in the way the next day was in fact go to his car and it was there because of these of the staff it was in then then then that some site data exhibit one twenty five provides this critical evidence to show that mr castro is that mr cohen went to my client's house the other there isn't strong evidence to show that otherwise there was an agent who said he saw the car there but  didn't take a picture of it didn't identify any people that were present very vague testimony so this is solid evidence to a jury that mr condit did sold one of my clients house and so that's the other real critical aspect of this evidence that should have come in obstruction and with respect to the subset response arguments i would like to just make one point with respect to the harmless error standard and then move to this area of inquiry that the court had of mr kushner with respect to the harmless error standard i would just note that at page eight of defendant's rule he cites chapman as requiring beyond a reasonable doubt proof that the error had no effect on the jury's verdict and the government's position is that that is a harmless constitutional error standard and this is an evidentiary case and that the case and the government briefs government's brief citing this court's standard which is that if there's any error it not have a substantial impact on the verdict is the appropriate one show quote data obtained through court ordered pen registers and trackers close quote as judge kelly pointed out in the government's proposed jury instructions also submitted one months before trial the government's proposed instruction number thirty three a page forty seven was entitled rule ten all six summaries and cited to this court's pattern jury instruction also entitled tunnel section struck summary was that instruction given that instruction was given as instruction number seven in the final jury instructions and it was discussed as the court's proposed instruction number eight at the charge conference during trial with respect to the discussion of the draft instruction which the court could find it just a court docket number i discussion of proposed instruction eight and the court will see in that discussion that the court and the defense and the government all agree that this proposed instruction number eight which is the rule the th circuit pattern on ten a success applies to any discussion of stipulating to that with her any discussion pretrial about the underlying data and whether there would be any waiver of foundation i was not was not the trial attorney and i don't think there's a record as to the pretrial discussions between counsel i will say that on page four of the defendant's reply brief in footnote one the defendant indicates that the government's disclosure of both the chart and underlying material to the defense in the instant case was similarly insufficient  defendant's argument there is that providing the chart in his view isn't enough but there doesn't appear to be a dispute and i didn't hear one during the opening argument here that the government did provide the charts and the underlying data in advance and that's certainly the government's position  i didn't think so that the guy that underlying data was provided the fence in advance so where do we go on the record to confirm that i don't think that's a matter of record i read the preacher oh conference in the case and i don't see a discussion of that particular insufficient it was the government's burglar stablished that the data underlying the charts was admissible evidence so i agree with the court as far as i can tell from the record you won't find a record cite where the parties discussed with the district court the discovery in the case which what what what course addressing but i didn't hear the defense counsel this morning and i apologize if i misheard saying that the government didn't disclose this before either trial lawyers or offering that exhibit but i do read the defendant's footnot that the government did so what is your view on the exhibit was was it fair for the district court to overrule that objection based on foundation your honor it was not a replace that it was not air based on foundation if i could i could indulge one final point with respect to the record on one thousand and six and that's that in the in the rule thirty three pushed out motion for a new trial the defendant argued for a new trial based on the iranian mission the six these exhibits and at district court to review here as a dovetails with the nature of the objection so the objection to trial was simply stated foundation which was overruled and when this court reviews whether under this court standards there was a clear and prejudicial abuse of discretion eight i think informed by judge locums questions the district court had no specific basis here from the defense no request to approach no requests for four d or and no cross examination of the witness as to reliability of these exhibits and if the co mr case law on the question of whether an objection to exhibit offered under ten o six foundation objection is includes an objection to the underlying data no i think what this court would trial lawyer but i would think it would be the cross exam of the witness who prepared the charter as foundation for the chart that would reveal whether there was a foundation problem with the underlying data and the defense will pursue that exactly right your honor and rule one thousand and six explicitly provides for that dynamic because it requires that the witness who prepared the chart is the one who offers it is available for cross examination subject to the underlying documents the cross the witness prepared to be available for cross examination with the underlying documents those were all satisfied that this case that this court's four decision says that the data underlying the summary charts must to be admissible but it doesn't say that the data must be admitted but it so the question is yes it doesn't have to be admitted but it does have to be admissible and if in fact defense counsel had followed up with the voir dire question of the cross examination questions that you've suggested were open to him then then what would have happened would you would then the government counsel one thousand line items whatever they were which is a typical practice every day in every district in the circuit and us and business records are recognized in fact the defendant in his brief notes that district  that phone records are routinely admitted person into the business records exceptions so i guess that and the answer the question would be then the government would have recognized that oh we need to shore up this foundation here yeah i mean you're suggesting it would have been a fairly straightforward task but you're not suggesting it wouldn't have been necessary it was kind of a negative question but you're not suggesting that that wouldn't have been necessary to establish the admissibility than of one  and twenty five i think so your honor i'm not suggesting the government would have had to admit the underlying data is clear that it would not but it would have had to satisfy the court that the underlying data was admissible i think to the court's question you actually find the answer in the transcript the defendant objected as a foundation there was a sidebar the government said i'll withdraw the withdraw the exhibit now because you were trying to admit the actual data the actual record i'll withdraw the exam tomorrow and i'll come back tomorrow with the and twenty as admitted by the court so had there been a dynamic here where the government with the with their concern of the court or specific objection from the defendant had to establish the admissibility of phone records it would have been literally a ministerial and twelve the court so so and i know you weren't trial counsel so maybe you can't and maybe this is not in the record but what was the government's view that foundation objection if not these records think lucullus from castro to the pizza delivery service it would be a waste of time to to have all these records before the court what did you do with them well i called the toll records that relate to these particular defendants and i put them in a chart and i also harmless air so i think to the court's question the government felt and did provide adequate foundation it provided the witness there was no disputed and provided the data it was voluminous and this was going to be helpful to the jury so i don't think it i don't think the jury the government had anything in its mind with respect to any deficiency on asian i would like to turn to a couple of quick notes made by the defendant was made with my last few minutes certainly to be interrupted by the court as you have questions but it's simply not true that the only evidence in the record of contact between jose between defendant and coda was exhibit one hundred and thirteen and i'd point the court to three read the quotes of the court no well with the cousin with the cousin with jose so cody uses jose's name in connection with a wiretap call referring to conversations that cota at pages three to six defendant says that he's been told one thing by the man about when the delivery occur and another thing by castro but again as the government are going to this brief the court could eliminate the evidence and thirteen related to those phone calls of contacts between the defendant and coda and the evidence in this case is still are well meaning there's no threat here that these three summary exhibits had a substantial effect on the  and this question at the time of the jury instructions that was after the evidence is already been admitted the judge had already made a ruling that was admissible and so the question for the jury instruction wasn't whether or not it was admissible but what was the proper jury instruction so the objection was clearly made and there was never any concession that that was evidence and in a given and references so the reference to hold say it could be that's the most common most common spanish names it doesn't say anything that mr