affidavit in support of probable cause and at the end of page nineteen in the final paragraph he asserts that there were a total of approximately five by six for approximately that probable cause would not have been established had the fire fully disclosed had not misrepresented the facts and had not only made it salient facts what the misrepresentation is number one which is not disclosed in the affidavit funnels for forty dollars to graham's one was for one hundred dollars one point one gram another one was three hundred dollars for one point six grams there was no way that it was now looking at the second issue we are arguing that our the trial fair trial where the fact finder the jury was not given the proper instruction if the jury was only given the general felony instruction that they were not given the instruction and included the a proper jury instruction to allow a jury to make a finding that can stand up under the due process class in fact that the jury should have been instructed according to the commentary of the pattern instruction they were entitled to this instruction when a witness and gathered information which he had as an undercover in an undercover capacity for the government by has been testimony supplied the only strong evidence in support of mr baez's guilt that's the claim that's that her brief page thirty four why did she make that claim she makes that claim because the legal standard that she's appealing on requires that she's claiming error from a jury instruction that was not given and that was not requested and the commentary underneath that instruction doesn't require the court to get a says the court may not deny requests for such instruction when the when it's supported by appropriate evidence and the commentary goes on to say hence the same rule should apply to this instruction and that the court need not give it to a sponsor except in the exceptional case where the testimony is almost entirely on corroborated so that's the nature of the claim that the defendant is make in this case if this is that kind of exceptional case where the testimony of the quite ready witness is is almost entirely uncorroborated ok that's the first kind of category of claim there's a second category that really least once after working with the government and claim now to claim the c i was using drugs during an active investigation and was attempting to hide drugs during a by and finally mr roberts testified he informed i net that after signing the agreement he used a controlled substance once at a friend's house and those are the claims that are specific to the frankish and i want to come back and look at those claims in some detail from the record the government's what does the defense omit the defense omit certain information from the the opening brief doesn't appear anywhere in a factual statement it doesn't appear in fact one of those what is that information that each of the federal buys one two and three three could revise included some audio recording in fact by one invite three were completely recorded so there's an audio recording was a real aerial surveillance conducted of buys two and three a lot the last two federal bust why was there aerial surveillance conducted because during the surveillance of the first federal by the federal agents learned that no matter how close they got to the the orchard they couldn't get close enough to actually see what was going on where the meetings were occurring what they saw was the informant driving down to the defend its residents on the orchard but they were unable to see beyond that so they got an of season ok there are there may be another person here or there but basically the activities occurring around shocked the defendants there because the defendant lives there and feed manages the water system for the for the orchard so  the aircraft was able to videotape the this person coming out later identified as the of the defendant wearing the same clothing essentially the same light vests jacket that the senate was later arrested wearing  and driving the eighty vehicle around to the record cars where marijuana was later discovered going back the informant then says no i don't want marijuana i want the methamphetamine and then he goes to the pump house person who's doing that well when the informant gets into the into the machine shop there's only two people there's one guy working on him on a golf cart you can actually hear him working on the golf cart and changing the oil and call that the jury had an opportunity to hear and assess what else is the defense leave out the defense doesn't mention anywhere in their brief the named aaron smith who's he's the person who came in and said i've known the defendant for twenty years and that sounds like him on the tape engaging in these drug deals with th jury instruction is going there it goes to the jury instruction plane air it also relates to the friends issue because some of this information has to do with surveillance that was conducted that was incorporated into the affidavit by the federal agent which is one of the reasons why when the district court judge looked at this to just a court judge said look there's overwhelming evidence of problems here i mean you know there's no question that they were they were drugged by the current at this orchard in relation to this residence and that of a search warrant should frankly that's correct ron and i'd like to i'd like to move on because i want to get to the specific point that i think goes back to the franks issue but i want to i want to cover a couple of additional points because again these are things that should have been in the  defense for even right that there smith not only testifies that sounds like the defendant's voice on the taste but he also identifies specific statements made by the person clearly participating in the drug deal because you can hear met says no actually the defendant has a brother who works at western auto the drug dealer says his brother has bought his camaro from him aaron smith is a law enforcement officer and said i stopped his brother in that camaro when he was speaking there were other specific references to automobiles that clearly identify the defendant including a not just the camaro but a firebird harley davidson bronco and then  says well there were other people around of these drug deals on the second drug deal another person does show up and there's another person in the car with him that's actually greg olsen is white the government found out with that person was to discredit also the government subpoenaed that individual called him as a witness and greg olsen said yeah i was there to get methamphetamine from the defend it and by the way as there was a guy named sam there well actually he wasn't talking about you could be specific about that day but he said i've been there with a guy named the fact that there was marijuana in his bedroom in the kitchen there west of methamphetamine found there were two scales found either one of which is consistent with that any one of them is used as the weights and the other one is a digital scale there was let me you've heard how the defense characterizes the evidence now let me let me mention how the defense the trial attorney the trial defense attorney  presented against him i don't think he had a real grasp of what the government's resources were and what they had against him and then sitting in court he not only saw a video he sent this is a misstatement he  mean there could not have been much more evidence they could have brought in and i think he was scared he didn't know what a hearing this is at the sentencing hearing this is the defense attorney said was this is the defense attorneys characterization of the government's case the tester is not saying all of this is a case where the only strong evidence was the cooperation witness the defense attorney saying look my client was scared out of his mind because he got in here and he saw that video he saw himself on it a drug addict he got off drugs he moved back to the asco area and started using drugs again based upon its relationship with the defendant he then when his life sort of came apart his wife left him he decided to stop in time after you sign that agreement did you also use a controlled substance and the answer yes at one time i did and i let them know i did and where did that occur i was staying at a friend's shop  that's as much of the record as the defense includes in her ex e's the next page what kind of controlled substance was it answer marijuana question where did you get that answer we go and you go on to find out that that occurred and that just state by so this statement that he's an ongoing drug user and implicitly if not explicitly saying that he was using methamphetamine isn't supported by the record in fact what it's consistent with is a one time lapse that is on that fifth by he went back the defendant offered him some marijuana and let's let's face it this is not something that somebody is prone to just because they've used drugs before there's a lot of pressure on a person who knows somebody personally and wants the everything to appear normal and that and the regular says here have a puff of this marijuana that person refuses that they're going to look like something very unusual happening that's the context of all this and then after he has that what does he feel later as he's going out to meet the officers he takes a method i mean tries to conceal it it doesn't work they find it when they search his vehicle as they should they confront him with that he says yeah i really screwed up i'm sorry that they have gone out and done these parts it's basically just context that's not why the federal agent was asking the court to grant permission to search that that that request was being made based upon these details accounts of the next three five and those revised your honour's is part of the reason why i had that broader discussion about the evidence that was left out by the trying to hide and in fact the other thing i would like to distinguish from mr holmes characterization is if you look in the excerpts of record which is the testimony during the trial by three he's talking about april seventeenth and two buys in name what i'm talking about are the five previous buys that are not adequately describe one by they decided mr brazier about thirty one minutes and half an hour  he's out of view there are other persons and they can't they nobody actually sees mr roberts retrieve the drugs from mr bass that there are sh mr roberts and what transpired while he was there and one final thing to that i would like to point out is during the first five vice which is the basic premise and  away and i think that's a very salient in critical fact in terms of how much evidence they really had in terms of mr bases direct involvement