this court will make the effect it would haue on him is whether he will be branded as a felon for the rest of his life or whether he would get a new trial where he can clear his name that's what's going to come down to at the end judge me how miles and miles case or apply the proper test it would be so fused together it would be confusing to the jury and they cannot make a decision at the end counsel is it strikes me that this is inherently one of those issues that is very fact intensive that we have to give a fair amount of leeway to the trial judge in making the determination as to whether this testimony will aid the lay jury in understanding parts of the case and as i as i read the record it appeared to me that there was a legitimate reason to have testimony with regard to the use of coded words and that sort of thing and i guess doesn't the appeal really turn on whether or not the the agent when testifying as an expert stepped over the line and became where i was going next if you look at the government's own brief on page thirty eight where the gun when the judge was deciding but the to admit expect testimony she said because i know what she said and the government has decided to use him separate from a fact witness which i know some of the ninth circuit cases discourage that use of the case agent as the expect so the government is not attempting to do that in this case that is what the predicate she used in reaching and allowing expert to come in because she was left with the impression that there will not be an expert testifying us a witness subsequently she about frazier that's correct actually i mean i have doubts whether or not agent frazier would even have been qualified as an expert in this matter he was on the job for one week how about one week and this was his first case he was a  patrol agent then subsequently became an investigator and was an investigator was he was on the job one week as a special agent as a that's correct as opposed to a patrol agent that's correct but it's an alien smuggling case isn't that what border patrol agents inter border patrol agents job is just to drive around in the southern arizona and also stand by the checkpoint it is much more a special agent whose job involves having to monitor the wire room they have to monitor i'm just was prefacing it we are the issue in this case really does turn on what you pointed out whether or not it is says seven zero one seven or three statements came in what is what i mean almost remind seems to me that all testimony if well of an is admissible if testimony is not a predicate on first hand knowledge but it helps the jury then the jury should be instructed under seven o two to consider that testimony not based on firsthand knowledge pursuant to the rule correct yes ok if we agree on that then it seems to me that your major issue here is that the trial judge did not give an instruction under seven o two i mean expert in a way are just labels but the fact of the matter is she did not instruct on seven o two and then the question is let's assume that's plain air did it make the trial unfair such that we have to reverse correct that structure that is absolutely correct because she should have given an instruction in disguise and i'm interested in seven that it would be what i would be offering to you they said he would testify about interpretation of terminology and corded language that is what he came in for subsequently every time it form call was being played they would stop the phone call and then he would going to this whole litany of information what he understand and what and then he would tailor it in such a way that it would support the government case and that it was going on over and over and over again almost became a second advocate induct and the judge and the jury was left with he was an expert who was testifying and without record judge jorgenson at one point discussed giving the instruction the government had proffered some language but you objected to the language of the government's instruction and as i read the transcript the absolutely correct about what you said and that was one of my biggest concerns when i was reading that i could picture very similar to what the fourth circuit in garcia has pointed out every time an objection gunman would move to that moment to the next question or it jerry of interest so they will slide along and slippery slope out and the judge will lose track of the instruction and at the end government at the very last day showed up with an instruction in this case which was was even up correctly the court pointed out it's going to put the defense in a much worse position and that should not have been the instruction but i guess my concern is defense counsel was invited by the trial court to propose something if he didn't like the language that the prosecutor had offered but there was need or a proffered instruction or an objection for the failure to give so i guess we are on plain error review then are we now well  keep telling i have more authority i'll bring you more authority down the road which they did i mean they never did they could finally the judge caught up to them and said look you don't have not given me any authority where your agents can continue to do this and then judge and why did them to give an instruction on the defense counsel said ok i think about it and she never did i don't know by the she missed whether but i mean it's either she missed or she made a tactical decision not to ask for instruction i don't think it was a tactical decision in this case judge i've almost tempted to say this trial this trial counsel was trying to her best bit with the bid the evidence was being presented and she phone calls yeah but equally when he's when he's talking about whether or not the interior border patrol checkpoints are open or not any saying ok the coast is clear because the check station is not alone is a very good indication gedge people who live in telling the other coconspirators the coast is clear you can sail through on the highway you don't have to drop your load off and have them walk around the station in the desert and then pick them up on the other side is the deal with that was all about he did that's the explanation we like why is that an improper subject for an expert who is familiar with drug smuggling techniques that's sort of in the tool box of the coyote is that it is things they do instead he turned around and stopped giving explanation about the phone calls in this whole case well i mean if the statement is simply the coast is clear it's a place he not permitted to to word i think he used and there was no need for an explanation under for that one the trial counsel did challenge and there was a sidebar conference and the court did i think we have your position in mind let's hear from the government to give you a little that the question was about i'm sorry to interrupt mr for that i just think we're better focused on the legal issues here and i don't want to cut you off in terms of your interpretation of the facts of it's relevant for the answer the question it seems to me that when judges preside over trials and witnesses testify they have to be very careful in the ninth circuit has said they have to be very careful about the distinction between late testimony based on firsthand how a judge first says testimony from an individual with specialized knowledge no firsthand knowledge of the facts and the ability to help the jury clearly you with a lot of experience the judge with a lot of experience would have seen this distinction in agent frazier's testimony why wasn't a simple instruction given wasn't plain error not to talk about this very obvious evidence distinction well your honor actually freeman says that the difference between lay testimony and expert opinion testimony and the circumstances is not all that clear and so when we're trying to judge is the agent working strictly from his experience but  good cases have said that that kind of examination can also include what he learns in the course of a particular investigation as critically what happened here the difference is not all that clear and that's why it's appropriate to put the burden on  defendant if he thinks that there is a problem to ask for in an appropriate instruction and i'll spend his responsibility even if i get plain error even if nobody requests the instruction the leave your order requested comparison to vera vera was a situation where the district court specifically said i'm going to give this kind of i suppose you could call it a freeman instruction distinguishing between these two kinds of testimony so that it's easy for the jury to follow here when the issue arose the district court first of all was hawking particularly in the context of agent broa initially who clearly was an expert about the distinction between the two guns but after the lady who was representing the defendant at trial finally got around after about two days worth of testimony and say wait a minute i think frazier maybe lapsing from a late testimony based simply on his involvement in the investigation into expert that's when a judge said ok well to make this clear if you you are concerned about that give me an instruction and the government was not opposed in fact to suggest to try and obtain one that it was familiar with which apparently was later offered forgive me did did the united states are for a seventy two sort of instruction in its proposed charge i don't think in the original set of instructions i tried to find whatever this was this one was that was then discussed and kind of discarded right before to the jury with actually instruct and i could frankly i could not find it so i'm not sure exactly what the terminology was never got mark as a chord exhibit even though the defense objected to we don't know what you were objecting to like as i could not find it so all that i know is the suggestion that was made that somehow it gave undue weight to what the experts just money was but i think it's very important to recognize that at no point was frazier ever defined for the jury as an expert he was never called that and as a matter of fact the government insisted that the huge bulk of what he was doing was actually simply lay opinion testimony which was appropriate so we don't have this situation where there is a question about oh should i treat him as an expert or should i treat him as simply a lay witness because he was never exalted or raised in that special level of credibility that comes with the title of side bar or with a leading question and that makes it clear to the jury that we're now shifting from expert to lay testimony and did that have that was done in anchorage now that's look at it exactly what is being alleged here because freeman kevin freeman sets out this list that was borrowed from the second circuit of potential sources of prejudice things that could go wrong with this kind of dual role testimony but the bottom line is if you read the opening brief there is no specific allegation unlike the oral remarks you hearing now that anything that actually violated kevin freeman was done in this case there was no simple regurgitation of the government's case as the fourth circuit talked about there is no proof no suggestion even that he was simply recycling hearsay from confidential informants which is one of the things that happened in vera and some of the other cases it being relied on so your position then that even though the judge didn't give an instruction and even though veera says that one must be given when an agent testifies as an expert in a way witness that there was no error or you  acknowledging an error under vera insane that nevertheless it was harmless well i'm kind of between and between basically i'm arguing that because the defense was specifically invited to present an instruction on this issue which in fact reinforces rule thirty of saying you must submit an instruction if you want one given that the defendant was on notice that this was the law it was discussed in a pretrial memorandum and there are objections and everything else they knew about freeman they knew about the distinction and yet even being physically invited never offered what they thought was appropriate instruction or even attempted to tweak the one that the government had proposed and various as that the burden is on both the defense and the united states to ensure that a jury knows how to evaluate case agent testimony so the government didn't offer to our knowledge the defense may have done so in effect of we in the court didn't given instructions so it seems like the error was made it was plain and we need to look at whether it was harmless or certainly harmless error isn't is one way to look at if you don't agree with the full waiver let's assume for the sake of peace question you will make it a hypothetical there was error now ok what should we look to in determining whether it was harmless beyond a reasonable doubt well first of all again what was the actual error other than the instruction because or to give the instruction but the impact of it what did that and i'd liken this to a four hundred four b situation where i think the was similar that the court should give  contemporaneous instruction cautioning the jury as to what use they may make of the other crimes or bad acts of it and for failure to give that instruction i think our case law says that's also an error so let's assume there was error supports the conviction well there's a huge amount of support and conviction and even a verily said it's only with the specific problem of the lack of foundation for the drug quantity  the defendant he had twice vehicles seized with aliens in he was continually receiving hundreds or even thousands of dollars when the suppose a price for a shuttle trip to phoenix was thirty bucks he was doing he runs he's doing invasive driving on one occasion was specifically testified about and then because his testimony about that differed from what he testified in the first trial he was caught in consistencies trying to explain that he was as mentioned constantly talking to this fellow who's kind of the dispatcher at the where oh shuttle talking about what well not really passing the time of day yes there's the checkpoint is open but oh now we have a free road to do a lot of business is not just can i get home for dinner he was talking about the license plates that the government vehicles had on occasion he specifically looked as the agent peaches vehicle the night when the whole cam was down and the suzy saw an unrecognized vehicle in the area he reported that to the other people and they couldn't follow all of these drivers on that particular occasion to follow him out of perilous and guess what he's got illegal aliens so came out are you saying is you're arguing this or for that if you consider all that testimony and exclude agent him guilty that's what i would like to have identified and a defendant has never done it what exactly was improper about the testimony because frank well i think if i understood who was in counsel argument one of his concerns is that  with regard to the road is open the agent then talked about well what that means is that you know the smugglers frequently determine whether the checkpoint station is being manned and operating and if the it is operating they drop their load off before the driver goes through with an empty van and then the aliens have to walk around through the desert the back of the station and then he picks them up on the other side and and then they proceed you know and he he's using that one phrase on in the cell phone conversation to then launch into this he didn't excuse me all that testimony about the general practices was from expert agent rowley and all if you know that was not objected to no not after the initial motion let me visit for the qualifications and so forth there was not a single objection to role is testimony and so i would have to i'm sorry i can't remember the exact pages but i went through the exact details in my brief of this objection and what was actually said and the district court said ok limit what you're asking a frazier to in general don't pin it on troll the individually and he observed at all times he talked about the roles of other people he never specifically pointed a finger at or all the and so what we have is appropriate testimony by age and you're all about the general practices all that in that particular instance frazier said but you've gone over about the same amount of time as they did your opponent and i think we have your argument in my thank you thank you mr counsel i give you a couple minutes on re earlier i think the government just told the court about or that testimony came from for all of that's not correct at all the market speaks for itself very clearly i mean we can read that exactly that's why i'm saying i mean the record speaks for sort that issue out ourselves yet the court again and also they talked about hundreds of thousands of dollars being coming back again that came out of i am now writing it down to the one issue the court want me to address rather there are a case on failure to give a proper instruction there there should have been a demarcation between the two cases i mean the two types of testimony provided by edg incriminating evidence that stands apart from the challenge testimony of agent frazier the other testimony that really will not stand up beat out jet engine frazier's testimony judge without his explanation counsel actually didn't your client concede on cross examination that there was an alien smuggling conspiracy here the only question the jury had to decide yes we did or he joined because he did and he case law says only a slight connection need avalanche of testimony came in from edge and fraser he was forced to testify on trial in the hope that he can clarify i trial but that that's a decision he had to make and that testimony can be considered by the jury in deciding whether or not he absolutely join to consider but if when a defendant is being in a trial setting he had a choice of not testifying and in this case once you get in fraser's improper testimony came in he had to testify and try to clarify some of the items happened i don't think i can you're asking us to extend very almost on a proximate cause theory but for the improper or crossing of the line by the ca between expert and lay witness the defendant would not have testified but since the defendant did testify he incriminated himself by the way he handled himself on cross examination and the jury can consider the fruits if you will  was whether or not there existed a million smuggling conspiracy and it's pretty hard to say on this record that there was no smuggling that could be and that could be a but if you take out would be it would become harder because if you look at the rest of the people also who test agent parole is testimony with regard to common attributes of alien smuggling enterprises and then you have all of the other  appreciate your both arguments i think it's in light of the issue thank you thank you for fish case just argued is submitted will get you a decision as soon as we can