counsel as you're collecting your thoughts let me just raise a question with you there are two cases each of which raise significant issues we want to be sure that we give you sufficient attention in each case but we'll let you tell us how you want to they speak to each other many times a day this much is undisputed at its core this is a case of mistaken identity and guilt by association the evidence of ricardo's involvement in his twin brothers conspiracy is again he was not present in any of the drug sales he did not negotiate the terms of the sales and he was not part of any of the phone calls between of wigle and the government agency his fingerprints were found on any of the drugs told to the government or anywhere else suspicious and most of the evidence introduced by the government suggested ricardo was t forth if if it were statements come in there's no question that there's plenty of evidence to convict ricardo if it were those statements are kept out then it's considerably thinner a i think i think that i would sit right so far i would agree with your understatement to the extent that i agree that it is the it is those statements don't come in but i would say that one of your honor statements you know my brother is going to get the drugs was not one state you know i think all the statements that he made are can be interpreted and innocent interpret those sure they can but that strikes me as just a jury argument rather is like somebody saying hey bro the problem there is he says my brother which is not usually how you use it and it strikes me as just for a jury this might i mean i would argue that the statements themselves in other cells are not enough to convict and furthermore this court has said that there has to be independent fairly from any evidence ok well let me get through the admission why isn't it the statements themselves can be considered under board jalur for the judge to determine whether there's a conspiracy and the defendant is part of the right to make that decision on admitting the evidence there has to be something else something fairly incriminating something fairly incriminating here right now why isn't that fairly incriminating number of two of his brothers close associates this twin brothers close associates doesn't strike me as fairly incriminating evidence and that's what we have to have independent of these documents i don't see that here but i think and i want to say because i think you're talking about whether this is the crux of my argument i do think there's an additional argument that i want to spend with let me stick with that for just a second i'm trying to think whether it's fairly incriminating and i'm thinking if i have a phone number of some friend of one of my children where the kid told me that he or she was going to be staying on a trip to california their restaurant and i'm thinking the room while the brothers phone numbers could be taken to be like the restaurant card in this is this is a matter of perception not my point is that ricardo clearly spent part of his life in an arena lived his life surrounded by drug dealers just brother was the brother was a drug dealer for some of his brothers close friends it's brother testify these people were his close friends were drug dealers i mean it's not surprising that ricardo was around drug dealers that isn't enough however to convict ricardo of this crime and also certainly isn't fairly incriminating evidence my point is if you look at the context of were those the seventy nine point six grams and the eighteen hundred dollars that in all of this well you know the conspiracy that the government's charging started me two thousand and eight in june two thousand and one there was not you know eleven over eleven pounds of methamphetamine that were distributed that were sold to the government in that conspiracy is found with seventy nine his only involvement alleged by the government was in may in june two thousand in two thousand  one year and a half later he was found with only seventy nine point six grams of low grade methamphetamine that was you know not nearly the same grade of the methamphetamine that was before even assuming for the sake of argument and i'm not saying that this is the case he was some small time drug dealer that doesn't show old that he was a member of that large conspiracy is a matter of fact and that same thing when he was arrested you know his brothers called nine pounds of high grain methamphetamine to the government government did not intend that he had anything to do with higher grade than what was found in ricardo's pocket significantly and and there's no way there's no evidence in government doesn't allege that he was involved in that sale that exact same day he was found within seventy nine point six there's another argument that i want to spit out before the court which is that even if the court was convinced that my client was generally involved in one transaction i think it's a matter of law that it's not sufficient to prove knowledge of the entire conspiracy involved in the seventy nine point six grams i don't see the connection and i submit to this court there is no i think there's no evidence that it's connected to the broader conspiracy there he was found with seventy nine point six preamps of low grade methamphetamine on him the quantity that were distributed in this piercing works far higher eleven pounds and that the transactionally down that day was nine pounds and it was much higher grade methamphetamine that i don't see the nexus there now the government has arguments that he was involved in this june transaction there there was this identification and then there are these statements that that that we discussed earlier and i'm saying that even if the court credit to those statements and thinks that he was the twin brother there in overall conspiracy and yeah my client is identical twin to a man who was running a large conspiracy even if you credit the evidence and say he was somehow involved in this one transaction that does not mean  briefs at this point i think it should be beyond its view that the case has to be reversed for the getters there when the court ordered me not to talk to my client about his testimony for some twenty eight hours temple help me on something about  think you've made a showing of prejudice so you need it to be structural reading getters they don't tell you structural kind of sounds like it's structural but getters came down before the supreme court ha constitutional errors in those days without any showing with prejudice well apparently so how are we supposed to decide whether it's structural well perry versus late the supreme court unanimously said it was structural air and constitutional right under those circumstances in a fifteen minute recess what the court said is you can assume that nothing's going to be discussed but what the court has said that an overnight we know you're missing my point it doesn't matter whether it's fifteen minutes or overnight or over the weekend there first of all i can't show prejudice because i would have to reveal what i'm talking to my client about second i tried to show some aspects of prejudice to the court and the court went and let me in third  lost my train of thought what they said is strategy the client testimony which in this case was the alpha omega of the case he talked about everything from even before the government witnesses got on until after the government witness he talked about every aspect of the case how my going to talk to him about preparing a defense to what's going on without saying you know this came up in testimony we have to find a witness is going to say this came in the very towards the very end of the case and the judge just short on our argument time in and ended very quickly thereafter this was a critical time in the defense when i needed to when i need to consult about like with my client about strategy and i because that's because the previous sentence says it's the beginning of a paragraph and if such grief recesses and then it the next sentence is what the description of the judge is and it ha date that the judge can prohibit consultation or restrict and and i thought you were just going to stick with harry which were bound by stead of cases from elsewhere that were not bound  i agree with you know your honor but perhaps your colleague doesn't let me ask you about something else yes i want to read the medical report that the jury didn't get to see yet about  used to argue that he had brain damage in most of us any of us who don't p i work or any of us who've had acquaintances with brain tumors know they're pretty diverse in their effects sometimes they affect mood a lot  sometimes they affect intellect sometimes they don't affect either one but the people get headaches and they feel sick and tired yet it just varies a lot and i wanted to see the record how big the entrapment as a matter of law because i think that's a very strong issue and i think the real question is of course going to have is whether to remand it for a new trial or to quit my client because the government is my client testified about is entrapment he spent a lot of time testifying about the five to six month period before the conversations were recorded and he talked about how the government preyed upon his fear of death and his sense of responsibility to his family and pressured him into getting involved in the drug business and that's just money went completely under about it and decided not to present any evidence to counter that and i think it's just like the scary case where its owner bought it and it has to quit him as a matter of long and i don't see that anything that the government's this case from any case that's been cited by the decider and understand that it looked to me like the law was pretty clear under getters and perry that a judge can tell the defendant and defense counsel no consultation or no consultation about the testimony during a brief recess and not for an overnight recess what are you missing in terms of the words of those cases well that's not my reading of the case and i believe that it's a more tell me the words i've got the cases right here ok well what words to look at what pages ok let me turn to that here are you talking about the distinction rests on the fact that want to defend that becomes a witness he has no constitutional right to consult with the floor while he is testifying that paragraph ok i assume you're looking at the case and not just the excerpts in your brief this is the case ok tell me how to read to a before your way assume you're talking about the language of talks about the interruption gatherers were at that starts with the interruption and the paragraph that starts with our conclusion and put no date it looks to me like that's the page that we have to study what they're doing and perry is their qualifying getters and they're distinguishing getters and this tells just how far the distinction goes and probably they have a limit to how far they went in order to put a majority together i think in order to read perry beyond its actual holding we have to look at the rationale for the rule that it's articulated here and the the only right and the government believes that that rules should not the application that rule should not turn on the fortuity of when a recess occurs during a trial the problem is if you tell the lawyer in the defendant you can't talk about the testimony that goes beyond coaching one discussion might be based on your testimony so far i think you're out of morrow morning instead of continuing with this trial it would be a discussion of the testimony and the then there might be discussion of what the testimony would be tomorrow that might show that a plea isn't necessary your honor even can't draw the distinction so neatly even assuming that that's the but there is that there is a distinction between coaching and what other issues other tactical decisions that might be legitimate for the attorney discuss with his client but in this case despite being given several opportunities defense counsel never articulated to the court what decisions might need to discuss with his client that were barred by this rule against coaching and then in addition there was a second overnight recess which was unfair heard in which anything two you can't show prejudice without breaching the confidentiality of lawyer client communications and number three the judge wouldn't let him feel prejudice anyway your honor let me  twenty before you go i understand your honor and apologize if this case actually involves a slightly different situation but it is analogous which is that the lucas claim not peel he was deny counsel because there was a hearing is pretrial detention he was approx one hundred twenty minutes miles away from his court appointed counsel and there were times in which he couldn't communicate with his counsel that sounds like it's not even worth looking up that only when a limitation on discussions with counsel is absolute it can't be just a restriction like it was here just some sort of restriction on what the council can discuss or what times are placed can't be that he has fallen par short of showing the undisputed evidence making it clear than an otherwise innocent person was induced to commit this illegal act by trickery fraud or persuasion and what we have here is an enormous record we have about one hundred recorded calls and it's the government's burden of course to show that there was not inducement and or that there was a predisposition here and in this enormous record we have absolutely basically threats there was a chicken on a stake put in the person's front yard and that's the sort of inducement that these cases there's no case analogous to this one where inducement has been found in any event there's abundant evidence in the record  predisposition he had he was very fluent in drug trafficking language he constantly was talking about his prior drug dealing and the jury of course was was allowed to draw the the reasonable control his conduct in a material way or not and that's to have doctors testify about it and that's why it's always done m p i cases so waive would ordinarily be done in a criminal case i would think and  wasn't done here i don't understand that the critical problem your honor and the reason that the trial court did not air by excluding these experts is that the experts never established any causal connection between this tumor which had been  treated and any susceptibility to inducement there just was never a causal connection made there are many defendants who in one way or another have a mental deficiency and that doesn't relieve them of criminal culpability the trial court here made it  although there were conflict of course about the effect of the tumor on cognition and this far successful treatment goes i thought it was time disputed the tumor is still there it's still huge and there's still a lot of the earth not a lot but some good greinke issue after successfully treated only means it does not appear to be progressing rapidly at this time it was my understanding your honor that that the tumor had been treated with drugs and had actually shrunk in size and also i'd like to point out that the defense's theory in terms of its defense has shifted over the course of the trial at some point it was saying the tumor was relevant because the government preyed on his fear of trying to induce him and other points based that he was brain damaged at other points they said he was mentally retarded he can be all those things well if you mean only if you have a brain tumor the size of an apricot you're likely to be impaired in your depending on where it is your mood your intelligence and to  there was an alternative holding that in addition to failing to show a causal connection so there it wasn't relevant in addition to that the judge found that in part due to that that it would have been overly confusing and distraction during the trial to have these these experts paraded in who weren't actually test to find anything particularly relevant or helpful in their why that bothers me what the guy has it's a whole lot of evidence from the doctors and from family members that he's really really stupid he drinks a glass a year and had not realized even when he was told it was your own because he tumor the size of an africa and that's a really big dreamer that really affects a person's brain and fix this problem but the jury don't get to hear any of that they just hear it wardo who has a tremendous motive to lie waving his dope dealing were to assume that this exclusion expert's was an error that excluding it was harmless beyond a reasonable doubt and the reason for that is that the record here which is very large makes it very clear that although it may have been a little bit  he was a very competent or certainly competent individual who is able to coordinate and structure relatively complex drug deals and and to continue to escalate the drug dealing activity and he's you know he's got his brother involved he's got his brother in law involved he's got a cook in mexico involved and it's just at the end of the day this expert testimony wouldn't have made a difference other than that we understand your government's admits that that is not the critical question here because even if you put aside who are those statements there was sufficient evidence to convict here and based on that sufficient evidence to convict his statements were clearly admissible and i'd just like to go through the list of that evidence to make that more clear that first of all this is of course a limited standard of review whether any rational juror could convict her that the person probably most important evidence is required is attendance at the june first meeting the south garden address there's no plausible explanation for that other than that this is ricardo after the meeting aerial and ground surveillance follows ricardo back to ricardo's home at the south garden address legitimately based on evidence that was in the record compared that handwriting to two samples that already had of edoardo on ricardo's and writing and determined it was ricardo's handwriting we also have ricardo's post addressed statement admitting that he was at a and in fact it was the day after me it was june first and finally and it's not even necessary because that evidence alone is sufficient to show the central role of riccardo in the conspiracy or at least that portion of the conspiracy we had the agen identification was really just the icing on the cake in addition to all that evidence we know that this meeting was was conducted with the purpose of consummating a two pound math deal that the only reason it didn't happen was the courier was late that same deal was consummated on june fifteenth in addition to that we have further circumstantial evidence in terms of the circumstances where ricardo ricardo's address with the drugs package for sale in his pocket the cash the scale the card with the rebel revolt this phone number more circumstantial evidence and then finally but unnecessary we have eduardo statements several statements on may third may fourth may twenty fifth leading up a matter of law they have to show that before the government got involved he had no predisposition when the government got involved my client had no previous position one hundred calls or all after the government got involved there's no evidence to rebut what my client said happened before the government got involved at the very early stages there's no case analysis because there's no analogous because there's no case in which the government hasn't put on their informants to create some contradiction in the  evidence is evidence went on contradicted and as far as the line which you said on the tape about past drug dealing i think if you imagine that there's two agents in this case one from the dea and one's from that local department of  narcotics and for some of the state department suppose the bureau of narcotics agent larry wallace says the carlos reads at the end of the case hey you know what we got nine pounds of methamphetamine i know a guy let's sell to him for twenty five entrapment is he going to be barred from raising this defense because he says when all these tapes about all these past drug dealers deals that he made he made them are the same way that my client made them up i don't think the fact that he talked about can bar him from being entrapped as a matter of law and if you want me to address the experts of the false argument or any of the other issues i'm happy to do i think we've we've heard your position and we understand we've