district judge i don't know if i don't much like the experts testifying about how things are generally but i have trouble seeing why it's outside the discretion of the district judge and i have even more trouble understanding why and here we're here and the abuse of discretion isn't harmless ad the harmlessness is the really tough part for me and it's hard to see work mattered parking lot of where everybody else has an air freshener hanging on the pick up truck mirror to it's just stupid to draw much from inference and that's part of why i'm thinking that it's harmless letting it in actually and that goes directly why does not again something that a lot of people i'm with detached that kenyans are not thinking if you got caught people on a jury and some cop is telling them all people who have their house keys separate from their car keys to dope dealers you get the four people on the jury at least two have their house keys separate from their car keys so the government her tits off instead of helping itself and at the very least it's not prejudicial well you know that you know i have my house keys separate from my car the juror is not the jury has additional information besides their everyday experience that maybe i carry my cheese with me and plus if the court takes the blame conquer approach to you so the government is using me groucho marx argument are you going to believe me or are you going to believe your own lying eyes no the government is going above and beyond to the government in preserving the seven is the jury's going above and beyond what a regular lay person background of the story everything pretty much matched up from the defense account to the guns you know where the credibility came in to you where it basically came down to credibility determination between the defendant and the government that really came into was whether or not this was of course a confession whether or not mr martinez are being that had deny knowledge and subsequently then admittedly wants to use legal permanent residency status was threatened so that that was really the bone of contention here mr martinez marijuana was in the car when originally it deny knowledge the rules really credibility determination between the week the jury had to decide if they believe the government if they believe specifically agent conrad or if they believe there was also evidence regarding the structure of drug trafficking organizations it looks like he got nailed because he grows the dope of cost and he confessed and that the rest is just frosting on the cake it was just a question of whether the truly believed him when he said i didn't really mean to confess that i would never confessed except they badgered me about my four year old son well i don't believe big bads knew about about his son that was a there was a picture of it peachy there were critical points that they testified to a trial that were not in any reports wrong and even if this was a full confession case the jury on this case was out for a good amount of time it would be it wasn't a quick verdict when they came understand it i understand back to his when the government put its own prestige behind the credibility of a witness like telling a jury we're going to put him on the stand if we didn't know he was telling the truth and i don't understand where they did something like that here comment on the grassy of another government witness and i thought united states versus wetherspoon in which the prosecutor made arguments during closing argument that were quite similar to the implied arguments that were made here  and so it's kind of a hybrid type of situation something that i don't believe that the court has ever dealt with in a published opinion prior to this the first the first question was are you telling the truth laws that being the case don't you hear that question asked by defense counsel all the time on the other side are you telling the truth the only reason why is not a common question you're on both sides in criminal cases  knows things that are probably not you just ask you know with this is going to attack if he if he's telling the truth this is not a reasonable procedure you know because the prosecutors because they have the not the power of the united states government behind them and when they do those types of things they put the prestigious of the united states government behind them a name for the jury that the prosecutor knows the truth the real truth quote unquote and that maybe they know fact going to come into evidence in the danger is that the jury that's my job is a fact finder is taken away from the jury and they're more likely to be influenced by the prosecutor ok but the object to skip that for versus the credibility of the united states government the united states government gets up there and the first witness they put on the story has credibility to play the jury that they want to thank you know instead i'm the government witnesses are telling the truth so those cases the prosecutor who will do significant evidence i we have expert testimony about murders that ran die of a drug trafficking organization run in this case that didn't happen here there were some simple comments was used to provide a breach in the absence of knowledge of information direct information relating to knowledge in this case your honour's the prosecutor did not rely on structural evidence to create a group  it's not that the agent was telling the jury here's what mills look like it's what traffickers look like it's that he was using that to interrogate the defendant and he said to the defendant during interrogation as so that maybe he could it was a confession that he was a mule but nothing more than a mule that and then what all he told the jury was that's what i said to the defendant have i got it right or was he also telling the jury are in the interview will be at the air freshener comment as well as the as well as the teased that testimony came in when the prosecutor axed about basically why didn't you take pictures of these of these items why w chose to take pictures of those particular items and really if they're on there's no more than that was there some special in the pictures i mean if i saw one air freshener i would think nothing of it if i saw six of them hanging from the rearview mirror i think  this guy's wife hates smoking or they've got a baby with dirty diapers was there something funny about the air fresheners there was nothing throwing your honor but the record is clear that the agent indicated that in the agency experience gay couples have drugs in them they often will have air fresheners but here in this case both the defense as well as the prosecution questioned the witness as to that issue and there was credibility and the prosecutor asked two questions as we had here in the record are you telling the truth it's usually what's happening there is that the prosecutors a to his own credibility i was circumstance and that your honor is no more than when a witness first takes the stand and swears under rolls i swear to tell the truth the whole truth through jury is going to look at that and recognize it's nothing more fresheners on and off over the years and seems like a lot of cars still in the parking lot and then they put in the evidence about the car keys and i'm thinking each of my car keys is just one key on be runners however i would indicate in this situation that the court did not rely exclusively on the on the advisory guy like i said in fact the court proceeded properly by considering the advisory guidelines concerning his client's client's history in the court instead of those things and i believe that when you look at the record that although the court did consider which the court is required to do the advisory guidelines clearly don't want to be like exclusively on those guidelines and then your honor make the same finding will stand to consider the court's rationale within the sensing hearing as really continuous and if you look to the court's discussion about acceptance of responsibility which is where you felt the language  in a bar to drive the dope across the border for thousand or two thousand dollars and then he told a different story it was the story of the trial i didn't know that joke was in the car and the story of the trial was that the confession was  calculations but then she has this post because of language taking into consideration thirty five fifty three a factors and i guess what i'm wondering is is that good that's right really that you believe because this court has left discretion to the court to look at credibility of the witness to look at the information in the context of the trial and i would use this court to not pass a rule that w in a non complex simple border bust case where there's no lack of a fingerprint defense presented now in this case it was and it's not a conspiracy case in this case there was not charged a conspiracy of the simple non complex board a bus the government endeavors to squeeze from the record that there was other evidence of some huge drug trafficking organization that the defendant himself provided the defendant told agent conrad the day he was arrested that he it was his friend francisco javier's car there's one person involved here that the defendant told the government about he didn't say francisco javier has a huge drug trafficking organization and he asked me to be a part of it ok so inaccurate now with regards to whether or not the pictures of the air freshener in the keys should come in this quote unquote part of the case it's simply not relevant to show anything  that the border at the border while the primary officer said that because his name wasn't on the ready stray shin and at trial he where in any of his reports that mr martinez was acting out of the ordinary or anything of that nature and he admitted that it wasn't so at any rate he got sent to secondary it was probably you know the real answer is probably that he had that he did not have knowledge that he had study and knowledge to make the agents stop questioning him at that point he said he sort of the same thing in questioning in a trial but i thought in questioning he said undermined every single one of them after morse's credibility was undermined it was making it far from prejudicing the defendant some of this nonsense about the air fresheners and the keys prejudiced the prosecution and the jury wondered why are they giving us all the silliness out of time and continue answer question then your honor would be exactly correct that would seem absurd and it would actually probably hurt the government's case but the problem in this case is that particularly officer van taste was up there the stand and said many times in my train to the jury in my training and experience this type of activity is indicative of drug corridors this type of activity is indicative of somebody who has drugs in the car and at that point that's the major issue that we have here with layer with the drug career profile and the most are plenty of drug court testimony is that exactly what the court has a problem with justice quite well you don't like the fact that  problem with how the structure of testimony affected the trial and you know wasn't harmless i think the panel for its time united states versus martinez have been it is submitted