but you put it forth in the way of a confrontation clause file ation and i don't find any cases that support that theory you know what i mean what i what i see here is  legal advice from their lawyer as to whether something would be a violation of to play agreement well i think that i mean if you were that boyer if you were that defense a lawyer representing that witness i think  i can hear your argument saying your honor you can't tell me not to talk to my client my client you know if my client you know what has a question about whether you know he is testifying truthfully he has a right to ask me are quite exactly the parameters are that have a right to speak to his lawyer during his cross examination that is exactly what the case is say that this case says that well perry the leak says he that he does not have even the even accused does not have a it is appropriate for the trial court to restrict the ability of even the accused to speak with his lawyer during a recess of the trial i mean harry versus a week says as much now as it talks in terms of it in the underpinning of that decision is cross examination the guts of the concept of the confrontation clause is cross examination that's that's the heart and soul of any defense in the criminal case is to be able to cross examine as you know the government's with this is let's suppose that we we have a rule that's says well certainly a cooperating witness ought to be able to talk to his lawyer and during his testimony well as if i cooperated witnesses counsel then certainly i can't advise my clients to say things that aren't true we all know that but can i have been sitting in the courtroom watching can i say to my claim hey you know  the prosecutors can't talk to you but you know i think that maybe you need to go a little different direction this yesterday or just or perhaps you need to see this in a different way than you did before i mean it's it's as if the prosecutors are able to to coach the witness search talk give the witness advice during cross examination and the and it's universally recognized that the effectiveness on cross examination of cross examination is premised on the idea that that witness doesn't know may not know what's coming may not expect that that's the whole point and in this case the district judge has allowed the witness to do that talk to his lawyer and the other other problem  you know you know the very first topic that the trusted counsel asked in the afternoon you talk to your lawyer and that was in the cross examination right you know well wouldn't that be one way that we could start that dialogue well i mean star witness that this wasn't just any witness here just a sound that well i guess i'm trying to you know i'm not trying to put you in a trick bag here but they are saying on the one hand ok i don't have to show prejudice how can i show prejudice well it would seem to me that in the morning but there wasn't any revisiting of that in the afternoon you know all right i submit that in the in the heat of battle i know i've been there but that may not be a good place for you to go as defense counsel that you have a chance to talk to your lawyer weight to the jury is for a form that the defendant would have preferred obviously because the jury only found three pounds well except for i think this sort of gets back to i you were sitting out there but well written j requirement that the defendant be sentenced within the statutory maximum well it it's hard to to refute that however i still think there's an issue out there concerning the effect of blakely on the on the sentencing guidelines is that i don't think we know all the answers to some of these issues yet maybe in the first monday in october when we you know when we find out that the circumstances from the summer maybe maybe will go a little bit more where we're going with this but i think the the the still of blakely problem and there's still a problem of about how does the district court what what standard does the district court use to make these factual findings  this case the court it sounds like he doesn't exactly say what standards he's using it sounds like a preponderance to me but i'm my argument of course is that the jury effectively acquitted m so that says they found three pounds it doesn't say whether they found thirty or whatever or however many they found but they found three so then we know that that enhancements found by for a chance i'm sure it's all you know all we know is that they found beyond a reasonable doubt that there were at least three pounds and that enhancement accounts for how much time is that sixty nine to have a difference between three pounds and believe or not thirty pounds seems odd but that but that's the difference it would have been a two level difference based on two to one whatever it is so but again i  here and we weigh the facts but but if you if you if you look at the evidence of record in this case the only source the only corroboration for that that he's a main player is in fact from from mendoza the evidence you have and it's to support sentencing conclusions whether we're talking about play clear book or whatever it's certainly we all agree has to be reliable and to  client mr vargas goes to this type of sentence based on the uncorroborated testimony of that of this person mendoza rico an admitted murderer unconscionable and i think i can't really talk about that the effect of the of the cross examination during the trial without also harkening to the parking forward if you will to the certain scene where the the statement the district court discretionary whether well under a fifteen minute break under a closed break like under perry it would be discretionary with the district court as to whether or not he wanted to allow a witness particularly in that case the defendant a defendant witness from consulting with found in this case we don't have a defendant witness we have a slightly longer break for the lunch break the court to work of course under gaiters has been decided that overnight  there's several ways he did not as the court of course pointed out he did not question the witness as to whether he had been able to cults of salt about his trial testimony now he did ask the witness that in the first in his morning cross examination well he says you've talked to the prosecutor patrick just fine in this case haven't you when they came there after the break the defense attorney did not ask the witness if he had consulted with his own attorney or had any consultation with the witness and his attorney this record is absolutely devoid of anything happening as counsel suggests may have happened because there's just nothing out of the court said yes you have the right to consult with your attorney there's nothing to yes or i'm sorry yes no i mean the question i want to know what did your attorney advise you and i think that the courts pointed out that if it was a privileged matter of course it wouldn't be you know communicated but the thing is if there were a bar dear certainly if the defendant's attorney put have said we talked about it we didn't talk about the to this morning we did talk about the testimony we talked about privilege matters which i can't reveal or we didn't talk truth and said it be truthful for him to get any kind of the society on the golf in any event counsels that he was prejudiced because he wasn't able to explore the fact that  join in the plan defense counsel's question was and you got the gun from vargas at the defendant and he said yes and that's that's what's of record under oath and i would point out at sentencing that the judge did credit mr mendoza ability to ask and then goes to his client's my no role on cross examination but the record shows that he never asked mendoza about any kind of a minor role he didn't list the testimony instead that his with mr mendoza and it had nothing to do with the an hour long lunch break so we would just admit that the record does not support this argument nor does to what actually occurred in trial on cross examination of the i what's interesting about this argument is that the defendant's basis for arguing that he should have received in my new role is based only on self serving minimized the statement as client made to law enforcement officers during the course of their investigation its client did not testify under oath his client was interviewed the first time when the investigation was beginning and he flatly denied everything being at the ranch on the day of the homicide charged with being an illegal alien and given his miranda warnings that he started to try and say ok well yes i knew what was going on but i was only an onlooker i might if they acted as the lookout but i didn't take out six packages of drugs two packages of money and a gun and leave so i think the judge is finding that this was a main player and it would be naive to think that he was anything else is clearly supported by the record in th here the most important part of what you do is your preparation for cross examination your cross examination might last five minutes but you may spend more time thinking about that and preparing for that it's the most important arsenal weapon in the defense arsenal and when you interrupt that in the middle after he's had a chance to know where you're going or might think he knows where you're going you interrupt that you give him an opportunity to talk to his lawyer to talk to topic of the prosecutor's redirect after cross was this argument about who gave the gun to the nose week ago and that the centerpiece of the government's case if you will on  a problem on the minor role because then that moves it out of what if you're showing prejudice in that you know that the cross examination of mendez back but if another witness who didn't have any issues with this cross examination