because my main issue was the credibility of the police officer he wanted me to go ahead and prepare my arguments with respect to my attacks on his credibility where i thought that  briefing in my statement of fact i don't make reference to the january seventeenth hearing i make reference to was in the other hearings all the way was there as an exhibit to that pleading and the reason it was an exhibit i officer what happened there was the other defense attorney examined the agent because there were five different motions that were being both at the same time the motions were different evidence against my client if we were not present now when emma jim are you contending was introduced at that hearing that was not already of record the evidence that was introduced was the focus was different the focus that had been introduced already was with respect to the the pattern that the government that had been developed at  the at the talks arrested them that had already been established and there had been custom on with respect to the mr staines the main defendant communicating with the buyers at this examination where i was not present a couple of things happened one is the furthest tested and said as they say sions with the buyers the focus was more on the i'm sorry in the initial when it was his communications with the suppliers now the focus was on mr hamilton and specifically what the government agent to testify to as a police officer was how was the pattern different with mr hamilton to distinguish it and the way he distinguished it was basically by giving his opinion which i would have objected to had i been my client was there he was negotiating twine to get them there and he gave his opinion that based on what what he knew that that why it took over two hours even though in where they reproduce the testimony that was given and it says mr saved them various phone calls with her trying to raise the additional flight below he was already in possession of five and they were waiting on an additional five what would i suppose would happen what do you propose should happen i think that because my client was deprived of the sixth amendment right that the case could be reverse and then what and then i think we could go back to the district court and i think because this was this with error on the part of this is structural error i think that's the conviction district court understood that the merits ruling just made on your motion to spread this would be the subject of  time that the only thing that we would be appealing would be the judge's ruling on the motion to suppress those tell you are really really asking us to blindside this district judge with a reversal on a procedural due process point that he did not get a chance to even hear argued level on a rule that right well i wouldn't call the line fighting him but yes i am aware of the issue of this argument you're making this obviously i have time for my pleading but at that time i didn't realize that i had not been pleasant to me it was one more day and a series of like five different days where we had hearing appeal if it was if it was twenty seven or above the government couldn't appeal and then the next sentence is you dish contemplated however this is just conditional  rule eleven provides that the court the government must consent to a conditional plea the conditions of which are set out in writing that wasn't done in this case brief but getting back to the structural error i think the problem there is that because i was not present i could not properly represent my client and that  i would like to begin by bringing two factual points to the court's attention one of which has been touched upon but the other that i believe is important to each of the arguments being raised the defendant in this case the first point factual point is to note that what defendant is claiming is structural error such that prejudice must be presumed  saying i would like perhaps only a very slight and partial defense to point out what was noted by defendant and that is the fact that there were six or seven defend clarify now that is simply absolutely unacceptable in my view of how prosecutors conduct their business i certainly agree that if the  lights had been on the government would have not done that i not going to disagree with you on that your honor but continuing on from there it was recross examination of the witness during a pretrial suppression motion this was not a trial that was taking place and it was also not by the television was in a critical stage in the proceedings no no i would i would certainly agree that the pretrial suppression motion as a whole is a critical stage but the question the factual point i wanted to make is that we weren't talking about the denial of cross examination we were talking about a denial of recross examination during  suppression motion but there's another point here a factual point that i do want to make make clear here that is important on each of the issues being raised by defendant and that is this the trial court held in denying the suppression motion that from the moment defendant drove away from the tucker street resident there will be there was probable cause to stop the defendant and search his car from that point forward now there was evidence already in the record that this was based upon a wiretap operating inside the house hidden camera focused on the outside of the house and there had been these fo seizures made from the house previous to the defendant arriving there and those facts were essentially are are intentionally uncontested by the defendant in this case so what we're really talking about here on this issue of what was denied by not being able to engage in the recross examination is something that certainly did not figure prominently if at all in the there and say just just that the argument here is that it is a structural error such that prejudiced must be presumed first of all on the facts to note that the redirect examination of deputy constitutes a total of three pages the transcript and one of those three pages was something on which the district court did not base its decision but the other point and more importantly on that issue would defend it not have raised it oral argument after the witness the evidence was taken to the district court it was attached to the pleading it was cited to the transcript  that day was cited to in their pleading why if it is the structural air with that not of jumped out and defendant simply say to the trial court the judge wilson your honor i wasn't present that day and i want to regard to the defendant that transcript was attached to their brief it was also cited to so indicating that there had been some reading of the transcript so it would i guess i'll say  structural i think the government was that i think defense counsel was that i think the judge was that but that's not really the point tell us why it's not structural error it does seem to me that based upon the court decisions that that issue of structural error also impugns or can raise the issue of whether the fairness and integrity of the criminal justice justice system is at issue here and i simply don't think it is of problem but again i would suggest as the case law does that not every year amounts to structural air and we've cited the many cases that state that the absence of defendant's counsel in brief setting and the even the absence of defendants addressing the confrontation issue does not amount to structural error in every instance in many  cases i think you do have to examine by analogy what had what was the case law says we have cited and out of district case which does go quite far and saying that the absence a hearing does not amount to structural air of course the defendant points out that was criticized by some members of the supreme court in a denial of search you're all right but there are other instances in which pretrial i'm sorry sidebar conferences which have not been found to be structural air and simply by comparison by analogy this recross examination of a witness during a  criminal justice system i would put this this sort of hypothetical out there for the court what if the defendant had been present with counsel on that day there had been this direct examination and then judge wilson had simply said no i'm not going to allow recross examination now we don't know that and that is a hypothetical example but i would counsel that we cross examination i think we can all picture the trial court as allowing it maybe some not grudgingly but the point i'm making is i think that that issue of recross examination and whether to allow it is within the discretion of the trial over and over again his way of controlling it is to just make statements such as briefly or something like that i agree with you that if it had been requested it would it would have been allowed by judge wilson but again my point is i think it is within a trial court's discretion to not allow and that would address the issue whether or not it can really be said to go to the fairness and integrity of the criminal justice system the next point i want to get to though is the reliance on structural error does show that there is considerable difficulty by the defendant in in showing prejudice in this case and i would suggest that the arguments in favor of prejudice the that were raised by the court are not terribly persuasive the one point that was made by the defendant a few minutes ago is that there was opinion testimony offered by the witness in the redirect examination that defendant could have been able to examine in more depth well that opinion testimony is contained within the declaration and there was ample opportunity that i believe with taken up by defendant to examine that opinion testimony the other point that was made in the brief that prejudice can be shown by the fact that in re cross examination there could have been a further examination of the credibility of the witness but that leads me to my first point do bear in mind that what the trial court held is that from the moment the defendant drove away there was probable cause to stop and that's uncontested so it's really very difficult in this case to show that there was prejudice i don't think from the record that there's any indication that recross examination could have gone to credibility and opinion with regard to what was occurring at the house was amply laid out in the in the declaration and examined during the initial cross examination  second to the extent the court wishes me to address the the facts concerning whether there was probable cause in this case to stop the vehicle and search it the facts show that there were four seizures made from vehicle driving away from the house and that on the day in question the agent not just the agent was testifying but also other agents had already provided information  assumption that's when the district court gave its consent to the conditional nature of the plea that i had no idea that it was going to be charged with violating the defendant's sixth amendment right although the i think you are correct all that was being said was the fourth amendment issue and the denial of the suppression motion that is what what was state even though they were not part of the conditions approved by the district court would you tell me why you think that's the case i think it is difficult to separate the two in this particular instance i think that the fourth amendment issue by virtue of the way that it is being argued is closely interlocked with the sixth amendment issue she the defendant is raising certain claims as to what could date or it does state as your honor pointed out that the conditional pleas are to be in writing there have been cases which have said that agreement by the parties on a general understanding is sufficient but your honor i think is has a good grasp of what the state was my belief as well that that plea agreement was submitted to the court at the time the plea was taken i don't know why it did not get made part of the record i would again point out for what it's worth that there copy of the plea agreement my copy indicates that you signed it today is that correct so i actually think it's clear that the district court and he's the one time had it and had it in front of him yes that is absolutely correct all right i will conclude very briefly i again would ask the court to rely upon those two factual point not just the fact that we're talking about recross examination but also that the basis of the court's ruling was that the defendant there was probable cause existed to stop and search the vehicle from the moment the defendant left the house and that affects both of these arguments it does not say the defendant at that point there being probable cause to to stop and search him at that point it seems have bring that issue before the district court there was no reason for me not to raise it at that point it doesn't make and it wouldn't have made any sense for me to be aware of it not raise it for the appeal and then raise it and then we were excused from being present and the court and the government was certainly aware that we were not present we were not there they were aware we were not present not only from the records but because they were born at the time that they're asking the question respect to what could i have done had i been present i think there are many things is speculation at this point but i could have objected to the testimony cumulative i could have objected to the testimony on the basis that it was an opinion and did not object to the fact they have been for these years before and that's correct we had nothing to do with those features the point here was that mr hamilton conduct did not fit the pattern of the other seizures all the other forms were almost identical in terms of modus operandi in terms of fitting the pattern with mr hamilton it didn't fit the pattern in fact i are you arguing that the motion to suppress would have had a different result had you been there yes i think that that is certainly a possibility because i have it more than a possibility i think it has to be pretty reasonable to conclude that well away that is what the court found that there was probable cause from the moment that he drove away from the stash house and therefore the balance of the testimony by the agent was irrelevant the whole issue of whether there was consent to search and all of that was taken out by the judge's ruling and that's why this really research director of the agent became even more critical because now it's down to what happened at that house and now we have this agent coming in and giving his opinion as to why mr hamilton conduct and what happened did fit the pattern even though it was different well that doesn't make patients had no idea who he was when he showed up his back was totally different from the fact that the other four theaters and then on top of that we have the fact that he's there for over two hours when there are eight to nine other people committed to tosca by that in his opinion that's why it took two hours because davis is having difficulty gathering the crowd for my client and he specifically says i'm testimony that that's what was going on and that's why he was waiting