there are three reasons why we see progress on this case first your repeated evidence and repeated argument the jury was asked to conclude that this would reduce go had a propensity for drug smuggling secondly the district co intruded on the fact finding process and on jury deliberations in that in responding to a jury's note during deliberations the district court volunteered additional law and indeed volunteered an application of law for the fact we did certainly we did ok so is that relevant to the question of intent well again in the manner of saying intense the question is legal intent intended only general the government to prove current circumstances is somehow implicated by some other drug smuggling where there wasn't a climate to ras and it just was a regular drug charge and so then i think the court that happens trying to answer that or because he did it before and had a plan to do it before he had a plan to do it this time propensity it is simply a key link in that chain of logic for all of those other purposes that the government argued it should be admissible for and so for because there was no allegations or argument that he voluntarily acted with that very same group of people so that that's why we would argue that that person doesn't apply now i think you've got to answer a question to the court after the very beginning why didn't if it was inclined to bring in the fire on the issue of credibility was to use the five step forth in cook determine each of those five prawns and perhaps most importantly determine the extent to which this is too similar to the charge defense to be correct seventy five pounds right in just step by step walk the jury through exactly how similar this offense was the last one similarly in closing argument the prosecutor made the argument that and he's a driver through this process nomination through the closing arguments and even in the government's case in chief so we would we would suggest the certainly harmless error under those facts now the second point is the jury instruction issue the district co received a note from the jury the jury wanted guidance on one discrete and simple question should they use an objective standard or should they use the standard in germany whether there was a reason wapas unit to escape it's very important to point out that the jury did not ask of the district court we buy some more help with the meaning of the word reasonable or what may or may not be reasonable under these circumstances or even more specifically  and it also made the government's best argument for them that he should have gone to the authorities the problem we have with that is that we had already closed evidence we there was nothing else that i could do to point out our best instructions or our best arguments to the jury and that was the to exclude the expert entirely and very briefly was timid there wasn't a discovery violation because we there was no information that the government lacked the government didn't raise that issue they didn't say that they were prejudiced in any way and even if there was of proof i included the experts resume included the letter that i wrote to the government and then i filed an additional offer of proof to the best i could but frankly i couldn't see it as well as you could say and what specifically he would have had the opportunity to about twenty seconds because you want to reserve i might as well thank you very much you got a very good will see what i can do it twenty seconds was vital because it was relevant it was relevant specifically your honor because it showed more so that the defendants entire story was a lie the fact that he was a prior drug smuggler two years earlier under identical circumstances truly identical circumstances the same port of entry marijuana driver saw occupant roughly the same where the government needs to show knowledge or intent you don't have any of that here all you have is i did all this but my story as you say is that i was threatened into doing  directly on point with her it's directly on point who decide in our brain let me ask you about her i just you know it's it's the one case we can all remember quite well yes i went back and russell no but the difference here is under this theory it seems to me that you really using propensity evidence and then you're trying to transform it in to an attack on the  she was linked up with the same people and somehow i guess i'm having trouble making the leap what you're really saying is he smuggle drugs before straight up he struggles right now and we don't he did it under duress and the reason we don't think he did it under duress is because he did it before not under duress correct it's more likely heis lying this time when he says that there was an accident there was some threat that was made at the scene of the accident there was a gun put to my head and i convicted he was convicted of drug smuggling now it doesn't make him more prone to be a bad guy but we introduce the similarities of these two crimes under  correctly states the law and third that it knocking this reading when taken in the context of the whole of the other instructions i don't think there can be any dispute that there was a correct statement of law made and that  reasonable opportunity to escape and that's quite flat out that the court the jury can consider that and then the sentence in dispute arrives and then after that the court concludes by saying in making the decision on reasonable law you know the question i guess i'm still a little troubled by for certain i think defendant gets into a fight and he shoots somebody and he gets convicted two years later and gets into a fight with leaving aside the potentially prejudicial issues in terms of the facts i would i would argue the more similar the two circumstances are more compelling it is to introduce that in order to rebut the intent based defense of self defense and who one going for a one for three and all sixteen for one it's not relevant this is someone who is not there's no evidence he ever met with a defendant wow but he report this incident now i think the person who was with the defendant your honor in mexico did not testify there was some mention in the briefing that well we wish we could have gotten him here to testify this is entirely uncorroborated the only testimony i'm reading witnessing of a threat came from the defendant himself there's nothing by anyone like that i think roberts the statement on a threat there's there's something wrong that someone witness an accident that was a friend a submitted for decision and the