nuanced generally the open door rule permits applies in a situation where evidence is introduced by one party that unfairly prejudices the other party and because of the unfair prejudiced the opposing party who suffered the prejudice he was given the opportunity to negate or neutralize that prejudice in this situation what happened was a witness for the government agent john who is a  columbia and who is an expert in the d c industry the british columbia marijuana industry which i'm assuming the court as dealt with at some point in its experience in the ninth circuit who's now an expert on the b c bug industr and what happened was when i was cross examining him i was trying to do standard cross examination technique and say these are all the facts you have that somehow indicate mr wong is knowingly involved and what mr came back was with testimony that somehow there was a comfort level between mr wong and the other consumer coconspirators alleged coconspirators and therefore that comfort level level indicated that he was guilty as i remember standing there and thinking this isn't the question that i asked and i thought about moving to strike i know the court from both being on the bench to just record level and trying cases and their lawyer capacity knows trial techniques and i thought should i ask the court to move to strike this and that sort of asking the court to unring the bell put the toothpaste back in the tube and highlighting to the jury this time for i i'm with you i mean i understand government is saying is we somehow open the door and that's where the intricacies of the open the door rule govern the open the door policy applies to somehow negate unfair prejudice gained by the other party here what the government did prohibited by the rules of evidence in the government's conceded otherwise would be inadmissible and you can look at the seventh circuit has a good case about it's called martina's and we've cited it in our briefs and basically it says that the open the door rule cannot be subverted into a rule of the injection of further prejudice and that's what's happened here is the government benefited from the prejudice and the non response of answer and then it got further benefit under the abuse of the open the door the open the door rule applies is to help the party that was prejudiced in here we were the party that was prejudice both times but if somehow we had gained a benefit by misleading the jury that's another situation where the opposing court at the district court level and then this court set it at the appellate level the government had the opportunity to rebut and rebuts a key word here the government in iraq but the evidence it just took it enhanced it by introducing impermissible ultimate is why isn't it well i've got a lot to say on that starting with a few things that your honor said first you said he was inside the operations we don't know what was in that warehouse when he was in there it could have been completely empty other than the truck that had been backed in there couldn't be and that's all we know second with respect to switching trucks and trailers we don't know if he somehow physically switched trucks and trailers government more to the point the government in closing argument argue the statement i would have known and i believe he would have known where the marijuana is it be two comments that i think  impermissible prejudicial testimony first it argued that when my client was out the border being interrogated by the customs agent he should have disclosed where the marijuana came from the shooter said hey i know that marijuana must believe that one knew where the marijuana came from it's and he did not say that ok prosecutor did not say that the other thing he said was he told the jury quote you will have to determine what the defendant knew and how problem here is the judge kept shutting me up when it let me make the record this court's decision incur then and symtab talks about the benefit or not as surety of instructions and they say they're most beneficial he didn't you worth of the testimony and that will be part of the instructions ladies and gentlemen you'll make a decision about how to assess the testimony of any witness who appears here and that's what the judge told the jury on final instructions and that's where this court's decision encourage similar questions there and the judge had never understand that you were proffering that testimony in order to establish that there was a pattern of using closer to the actual event of drivers to actually didn't or at least were found i gather in the so the case not to have known did he understand that was the relevancy is you there's a key there's all this talk in the record that we have  what happened was i tried to question several witnesses on that and when i questioned it it got time to again i think is the undisputed expert in this case i went through a series of question this in this to as i asked him did they claim they ignorance or innocence trying to make the point that there was an evolving modus operandi stuff first they had knowing couriers then unknowing when i try to get into the issue they start shipping by rail road the court so that was irrelevant because that occurred after mr wong was stopped good morning my name is joe dagger time assistant united states attorney from the great falls office of the united states attorney's office in montana like mr rhodes all confine myself to the first two issues with respect through the good hand testimony i think it's important too to view the context in which this was presented by the united states presented mr getting out of a centrally as a fact witness on direct examination and ask him about in particular testimony that was given by mr good man however it was a subject that was opened up and it was a subject which was certainly left and sort of a haze at the end of the cross examination it wasn't precisely clear what officer good hand was talking about when he was speaking about this this comfort level at least it wasn't clear to me that may be true with the i don't know what it had to do i mean basically indicated a comfort level i don't know how at the end of that testimony the government was prejudiced at office anything that was benefited it seems to me because the question opened up the opportunity for him to sort of  to go ahead and put together all the things in fact he says at the end well you asked me if i was aware of anything else and that's the only thing i can think of that was on the ribs ration point but he's gone through this laundry list to understand under prejudicial somehow to the government but it seems as if things all they did was sneak in a volunteered statement about comfort love and then you got a chance to take that one and say ok you know what i mean by comfort level he testifies to something that clearly canadian vastag ation has just what you summarize to and it was in that context that could navigate this this testimony about comfort level and so i think what happened was at least it was my perception at the time that there was th effort by the defense to portray that there was a very limited amount of evidence concerning juan and his involvement when in fact it was substantially more and one can make this statement about comp comfort level i didn't feel that it adequately addressed what his concern was and what the concern is comfort level is his mental impression that he is deriving from his observations that's something that he wouldn't be allowed to testify to it was directly i suppose asked by the defense can you did you form an opinion based on your observations as to whether mr one was acting with knowledge or whatever means you didn't open it up that way at all it wasn't opened by the question and i write the question was no one has ever said anything about mister lane being involved especially correct to that effect right well you know the answers with a little bit the on the question i would agree with that you're on the defendant didn't object or move to strike any of them that's correct sure judge i would agree that the questions that were posed by this to this witness and by both me and by the defense could have been crafted considerably better well are they could have been answered more directly that's that's true your honor however i would also note that that i think it's critical that when mr hand made is an initial response and it was to whatever extent it was beyond the scope of the  court now with respect to this issue i would also know that that there also is and we do not concede error here but that to the extent that there was this is a harmless error case and this is a kid which is not that's correct your honor however i think that there was really very overwhelming evidence with respect to that state of knowledge now much sir more so than the normal courier case and i think that the starting point with that is mr first of all as mr wong presents at this at this warehouse and to the extent that there may have been err on the redirect examination certainly if one testimony concerning a comfort level even viewed in isolation and viewed outside the context of the redirect examination that's very powerful testimony and that is in the record and it was put in the record during the course of of his cross examination additionally mr wong was driving this trailer truck which was registered to mr brand mr brewster brink was pulling a similar trailer with a essentially identical compartment loaded with marijuana next to c and that was registered to mr wong now at trial the defense made me need to spend a great deal of trying time trying to suggest maybe mr wong didn't realize that he was the registered owner of his trailer pulled by used to brag of the fact the matter is at excerpts of the record pages fourteen thirty seven to fourteen thirty nine it's confirmed that in fact when the registration for the trailer for wants trailer that was found and used to brings possession was made that ontario driver's license was shown i think it was demonstrated very clearly to the jury that in fact mr wanker it's much more than your normal mule which one sees in these sort of cases he was one of fewer than ten people who appeared at that warehouse it was very tightly controlled situation and he did appear to be on very intimate terms with the it's those yes so perhaps i could start your honor with that and with the two truck drivers who we spoke about in our case student mr rose feels maybe opened up the door so to speak to the presentation of the testimony in his case of the two in our case  entry and he attempted to make a delivery to so the cost of the kong's later scene at the warehouse with juan finley admits that he knowingly smuggled his marijuana and and then on prior occasion he brought marijuana in with an individual name individual has just wondered if he was apprehended at the port of blaine again and i believe january of two thousand and two pulling out a trailer loaded with marijuana on the relevance and the traction to wanting there is that the tractor trailer that dylan was using was actually released after the seizure and was the it was the same trailer tractor which won was driving on the day of his a actually made an objection on the relevance ok and with good hand we objected to only one question about this outfit and that had to do with whether or not these two defendants over  in washington confessed to knowing about the source of their out through camp the rest of the testimony about that seizure kenya and i can i can point it out but i'm getting at is it isn't it isn't it if these two companies functioning wherever they were in canada are having all of these truck drivers and they're all going out here and they're going living marijuana into the united states isn't it relevant is i think that mr wrong occupied a different sort of status in the smuggling operation and some of the other very very low level couriers i talked about the reasons why and that's one reason the other reason as i've said is the only thing that we have jack to two hundred hands testimony had to do with whether or not these people it made it that they needed the source of the marijuana and in our position that was that those those individuals the what those individuals actually knew wasn't relevant to what mr wong because mr want had this different status for them they were allowed to go their way were they not well they were actually prosecuted found not guilty large amounts of marijuana presumably in these hidden compartments to some drivers who really didn't know or where the they they denied knowing and you know if it could have been gotten into the  s in those cases so why wouldn't that weigh in the balance for the jury to say you know it's not one hundred percent what they got to see it was your evidence everybody that you chose to put in collateral to mr out that that it wasn't present but you know i mean that's that's that's sort of the problem that we faced and then if we look at the the proffer that mr rhodes made after the hands test and i believe it was during the testimony of the defense investigator they tried to put on and we would submit that the testimony by both the defense investigator and an agent by day checking were hearsay and were properly excluded on at ground zero but that proffer really never got to the guts of what is being presented to this court that it was somehow established on would be career testimony if if you look at that proffer it's just not within their talks about a similar modus operandi you know basically sort of a common scheme that's investigation because what happened is when my office went up to canada we discovered there was this two hundred page plus report over dealing with years and all these defendants and all this activities it wasn't disclosed to us canadian ok with respect to just the idea that it's ok to give evidence in about finley because he somehow closer closer in facts to mr wong one thing is if you look at your fourteen eighty four in closing arguments the