and we'll go on to the next us which is sixteen thirty two eighty six united states versus and th you bring it on the hate b s p does understand that have you explained to him that he has a better opportunity to obtain an evidentiary hearing in a collateral proceeding than he did in his rule thirty three motion yes mr yes mr simpson fully understands the issues that the court is is asking about and so you are you you're telling me that you're telling us i take it that you don't not have to consult with mr simpson one more time before we take the case under advisement do i feel like i need to consult with him again no i don't you were very clear with him yes ok i mean i understand my obligation as defense counsel and i understand the issues on appeal i have had sufficient time to consult with him and i have explained to him his options but ultimately it is mr simpson's decision that we that we go forward  appeal and i would submit that it's not have bad decision here and the reason that i say that is that what we're asking for is a remain and for an evidentiary hearing been investigated by defense counsel and the reason i say that is primarily there's sort of two buckets of evidence that i think are the most important to talk about the take the rap evidence and the previous trips evidence i'll call it ok so with the take the route evidence recall that the the proffered information is that the informant mr made statements both on the scene of the arrest the traffic stop and arrest and later during the search of mr simpson in mr simpson's mother's home that simpson was taking the rap for the other two in the car and what does that mean generally i would submit the taking the route means taking responsibility for something that somebody else has done right in other words the informant is sort of confessing to the crime i did it he's taking the rap for that for me and the other person in the car now if this event investigated if the district court had heard enough happened and he's talking to the mother of the defendant your son is taking the rap for me your son is taking rap for the other person in the car describing a contemporaneous event nope you know the government argues this calculated narration piece but i would submit there's lots of things that the informant might have said like you're your son just got arrested right there's no reason to sort of make up this confession on his own part speaker perceive the event certainly contemporaneous or shortly thereafter it's a present that's impression and if it's not that excited utterance i think which is a broader evidentiary basis for admission would also cover the taking the rap statement and low level dealer how do we get pass that testimony first of all mr simpson didn't confess to that was my heroin and certainly mr simpson has a heroin problem he's a heroin user there's testimony that he is in these things car has ben to st louis before and i'll get to that in a minute but there's nothing about that comment or anything else that is inconsistent with his defense that listen the people that were in the car were those three right and the only evidence that this was mr simpson buying the drugs and possessing the drugs was pradelle in winchester and those were the people that were supposedly th mr simpson was supposedly taking the rap for the other piece of this the other sort of bucket of of evidence was this previous trips evidence the district court says it was just irrelevant it didn't matter but it wasn't irrelevant given that the government actually presented evidence and direct examination of none other than rebel and winchester that they had made previous trips with mr simpson to st louis now if the government thought it relevant you know mr dunn mr pradelle testified this was the regular our regular pickups if that's relevant it's hard for me to imagine that it would not have fed relevant for mr simpson to be able to in some way try to address or rebut that evidence and the way to do that was with these two witnesses both of whom would have said it's mr pradelle that makes the trip to st louis to buy the drugs yet again is mr simpson sometimes in the car he is he's a heroin user but the only evidence of him being the possessor with intent to distribute was your informant who says simpson's taking on a raft and winchester so those previous trip if it was relevant to present the jury with this information which the government did on direct examination through two witnesses it's hard to imagine how the just record is correct in saying it would have been irrelevant for the defendant to try to defend himself to try to rebut that evidence and so in the end what i'm asking and what we're asking is that the district court conduct an evidentiary hearing to actually make these determinations i think there's enough probably in this record for the court to be able to say this was likely admissible but in the end all we're asking is that the district court be given an opportunity to understand what would these witnesses have testified to what are the parameters you know the government rightly so says these evidentiary basis are heavily factual to tie the contemporaneous nature of the statements the excited utterance those things are intensely factual yes they are and so for the court the district court in one sentence to just say no snow here say exceptions were available without any factual analysis is the ultimately here that we're asking this court to correct if the court had looked at the factual circumstances i submit that it's very very likely this expulsion torrie information would have been admissible at affidavit sort of typical affidavits war they say there are no rights and that's that's as much as i can i say you know when they were submitted they were obviously submitted through defense counsel at the time in in support of the motion for a new trial as a way to get this evidence again in front of the court so whether they were affidavits or notarized statements i think it was the case have been tried exactly as mr simpson had wanted there was no reasonable probability that the outcome of the trial would have been any different well let me only talk about something here  impeached any further if there wasn't a reasonable probability that the jury would have reached a different conclusion i think in other words the theory that pradelle had set mr simpson up that he was really the drug dealer was fully before the jury they have that theory from mr simpson's own testimony before them and they with their verdict rejected that theory and the other thing i i wondered about was i understand that  but boy you know if i was sitting there that sure sounds like pure propensity evidence to me how was how was it not play never to admit that testimony i think  it wasn't plain air just given that they didn't testify directly about this instance where where they drove a man came out there was differing accounts as to whether simpson when ending got the heroin by the man came out and gave the heroin but they testified specifically about this and i just don't think that it would meet plane air that somehow that testimony undermined the direct evidence about this trip oh we just don't think that there is any reason for an evidentiary hearing in this case because it does myers cough took the allegations in the letters and they are not sworn letters your honor but she took that information as if error on the date of the letters but they are not sworn judge miers cough did take them as though they were true and just said this is insufficient to undermine the jury's verdict in this case which under rule thirty very briefly i disagree with counsel's reading of the district court's decision that somehow she took into consideration the truth of all of this and nonetheless rejected it what she said was the evidence was an inadmissible and therefore it would not have changed the outcome of the trial in other words you can't establish prejudice it's a very different thing similarly counsel indicated that the jury rejected this set of theory right to take the rap theory because they heard it from the defendant quite another thing and to hear it from the person who is confessing to that theory had the jury heard not just mr simpson saying it's not my drugs right he's clearly got an interest in the trial in the outcome of the trial but to hear it from the informant twice mr simpson was taking the rap for the informant is a very different piece of evidence in front of the jury and i would submit a much more compelling one that may well have changed the outcome of the trial