decided that after the three years of arguing that the special agents estimate was permissible decided that it was not but nevertheless there was harmless error because of the other evidence that the government presented at the trial what the government fails to do by either minimizing or ignoring the effect of the speed of the f b i special agents testimony  is fatal to their argument that there was harmless error in this case the standard of review for harmless error as judge walker himself discuss in united states against duke or jeannie and united states against garcia which is known as page ten of my brief that in order for an error to be harmless there has to be a substantial and injurious effect or influence on the jury's verdict and upon review of the entire record the court must be sure that the errors did not influence the jury or had a very slight effect now this is the case agent in this case and the f b i agent had fifteen years of experience as an f b i agent seven of those years he spent a good deal of time investigating this particular case and with his vast experience as an f b i agent fifteen total years and a portion of seven years investigating this case that created an aura of special reliability and trustworthiness which must have been packed to the well to some extent yes although i would quarrel with whether or not there were all incriminating many of them are angry well that that was that is part of the government's case is no doubt about it but special i agent ten was testimony was not just some passing reference it's forty five pages in the record testifying about how he determined that my client was guilty by designating him as a quote promoter and in it and an organization that he was affiliated with was a so called normandy entity now these are not abstract neutral terms they have to be understood as  special agent denver testified to during his testimony those designations promoter and nominee entity have to be understood in the context of what he expressly testified to which was that based upon his experience and the information that he and gathered during a substantial investigation that there was a widespread international scheme those are his words the word scheme which is a statutory element of the fraud charges that my client was charged with he testified to who were the prosecutor in his questions nineteen different times i can understand your dissatisfaction with because after the initial government witness which was a expert witness testifying from finra about various training agent dangler was the next witness to testify he testified for days i'm assuming didn't testify or that he testified completely within bounds use or any realistic possibility of the burn it would have been different yes because the jury must have been impacted by what he said about my client it answers the question the only answer the question has to be what would be the situation in denver have not had not given this testimony the improper parts of the terms and i think you're asking a jury to perform an impossible task which is not to be influenced by all the prejudicial information that they heard or using it with you're saying they wouldn't be influenced by the accomplices well the the the campuses ok let me deal with with the with convictions he testified at the trial and it made it at the trial of this case that he perjured himself during his testimony at that at that other case josep manfred only the other cooperating witness testified also that he and  been involved in numerous frauds and indeed men for donia testified that he never met my client as as to the tape recordings i can obviously within this time talk to you about how fifty something recordings at the government played that they can be interpreted in different ways obviously the recordings would have had an impact on the jury's evaluation of the evidence in this case but the point is and the crabber a dollar the recordings well to some extent perhaps yes but to the extent that they were subject to different interpretations then the answer is no now there are other things that denver testify to which this court cannot ignore he testified that there was manipulation he and the prosecutor injected those words in six different times into the record he testified about corrupt brokers in kexp acts not only that nothing to do with my client there was no evidence of it now this was a purpose supposedly for the purpose of case presentation and it what it did is it usur the jury's function by allowing the agent to in effect to clear my client guilty and usurp the jury's function the government kate the government's brief  eight thousand two hundred and seventy eight words did not mention in all those words the words good faith which was my client's defense at the trial of this case and that's what i addressed in my reply brief so they  argued there was all this other reverence the tape recorders or cooperators and they completely disregarded the affirmative evidence that was presented in this case of my client's good faith evidence which is already there were recordings of your client talking and saying things that substantially undercut whether he was acting in good faith well but you could are the certainly that is an interpretation but there was other affirmative evidence that he acted in good faith which was in in effect negated by the district court judges are allowing this very prejudicial testimony that was affirmative evidence and employee testified in a videotaped  deposition about how he attempted to corroborate all the information the press releases which he which my client did not create he didn't disseminate to the world  his the company's website that there was testimony about disclosed everything there were disclaimers that the government did not argue was were inaccurate in any way or misleading  promotion is on the gulf the company's website which the government did not argue were erroneous or misleading in any way so you can surgically try and remove as your questions have asked my name is andre specter and i represent the government on this appeal we can see it on the peel that the government's questioning of the special agent strayed into impermissible areas there are two areas in particular invisible hearsay improper fight hard to get in and then when you get the conviction because you're saying you need john we need this stuff got to get in and it's permissible and then after the conviction to come sooner crawling back here and saying no big deal because although it was clearly error we had lots of other evidence you didn't need to after all is what you're saying we did not need it in your honor and that's not what you told the district going through at the time i'm not you implied i'm not sure we told the dish record that we absolutely need it but we should not have fought for this evidence to come in and take your point your honor and it was certainly not intentional on our part to do so i think now you thought it wasn't here saying you thought it was something other than opinion testimony i think that the prosecutor in this you judge agreed it was appropriate testimony for to get you to take that lesson back to the office it's been taken back your honor and it will continue to be taken back it is something that no prosecutor should do a trial and you know we there certainly have been cases there are a handful of cases where other prosecutors have done so and we learn from those cases you know the disputed issue of this trial as the appellant pointed out was knowledge because he raised the good faith defense and the appellate agree that he was a stock promoter but he said  he gauged in the conduct in good faith that you just the man was not a knowing member of this conspiracy that essentially is what this case came down to and that's why at the heart of this trial with the damning recordings of the opponent and the testimony of to cooperate in witnesses that was the evidence the government's trust in summation and that was primarily the evidence the judge would tell ya know wrote was quote voluminous comprehensive and overwhelmingly incriminating in comparison the testimony that we made was improper was plan for the pump and dump operation government the next three or three in regard to the recordings judge would tell ya know wrote that they put the defendants roles quote front and center these calls according to the district court because the other person in the line in those calls was dole and he was the one who was asked at trial about those calls and the calls themselves unlike in other cases where this this area has come up didn't require decoding they were explicit one example is the palin saying the dollar quote a little fluff is fine i mean a little more substantial than a new board of directors another called all it's all the appellant that there are only quote one hundred thousand shares against us and later palin you're a team player when it comes to selling right and without hesitation the opponent says yeah there were in fact two calls that completely contradicted the good faith defense because the palin could be heard suggesting bring down the stock prices which there's no innocent explanation in one of those calls he says these guys that i'm lining up one of them had asked if we could bring it down a little bit another call it all it tells the appellant you know bring it down a little bit  and have the heavy volume we could do that as well and then he said there's lots and lots of this this evidence which i agree is highly commanding what do we i mean do we just ignore the  and then we relied on the cooperate or system only so i think that is one way that we could go about analyzing whether this error was harmless the other ways you could we could read the judge's opinion below who presided over the trial and we spent most of the opinion talking about the coopera wonders in response to walker's appropriate question what does the government take back to its office the duke of jeannie case which i cited which is judge walker's opinion was in two thousand and three just sitting here listening to mr specter's argument i counted approximately eight times that this kind of problem has been before this court in which it was agreed as testimony usually by a law enforcement agency and the government is arguing harmless error or if there was no objection there was a plane or so the point is that the government has not gotten the message i hear you point and i'm sympathetic but i mean the standard is not you know how do we send messages the standard is a pretty clear one right and so the error is harmless if it unless it's highly probable and it didn't contribute to the verdict right in arizona as if it's highly probable and it didn't contribute to the verdict so we've got all this other evidence and so i guess we have to determine whether or absent this improper testimony the verdict would have been any different and do we have a high degree of confidence that it wouldn't have well that's why you cannot surgical just remove this testimony you have to put it in the context of how this may have impacted on the jury in evaluating the evidence in this case and the appellant's if you do you think of good faith you agree with the government's characterization of the  that the agent testified about these money wind records which was supposed to be a means to perpetrate a fraud and there are three different references in the government's summation to the money on re introduced through that witness and there and as you separately that's the point the money line records were never introduced even though the government had them in its possession they were produced as part of discovery they weren't introduced into evidence but dang testified about those records but his testimony about the money mind records which were not introduced by testified about was as a wrongly is as an agent's testimony was about the records because the  so that the fraud was able to be perpetrated and that was actually not the case in the appendix pages ninety three to page one hundred and fourteen and pages one hundred and ninety thousand one hundred and twenty one there are records from money line that they didn't introduce into evidence but were part of the scullery which specifically has my client's name numerous times so contrary to what many freedonia testified to that the fan then offered the documents well he he could have but a judgment i was not too well because the government was arguing that these records were used to perpetrate the fraud and it is not the defendants obligation to introduce some evidence that they are contending was used to perpetrate a fraud that's true but but you you you keep hammering at the government and off the mound of questions whether the family could have gone in a literal sense yes but that you can't take it you cannot take it out of the context of what happened here is they it's true it's literally correct that the defendant could have offered these evidence records into evidence but what the government data about them besides a listen in the improper testimony is they exploited it in their summation by arguing that this was a very effective means of perpetrating a fraud they were traceable to the account holders which is completely incorrect because my client's name is all over the records that are identified or your point is it's not clear whether those introduced through the agent's testimony and through one of the cooperating witnesses and it never met my client but some references to money line were appropriate if they're based on the other witnesses testify but the that point from being made at the trial they were and could turn cross examination where you had the records well that that was the different that was the difficulty of being put in the position of introducing records that the government was claiming was used to perpetrate a fraud and then testifying about them in a very misleading or even a row only as well which is what happened although you have to actually be introduced into evidence they could just be shown to the witness they didn't do that you  group i couldn't but again that is that is the judgment call that is made was made when the government is arguing that these records were used to perpetrate a fraud let them introduce the records and say whatever they want to about them