the district judge district court judge the trial court judge such bench improperly considered a motion to consider chief judge lewis is order this excluding videotape evidence on the morning of prowl when the government failed to raise it for several months and feel to raise it at the pretrial conference that mr george specifically requested in this case for the purpose and letter from the guard several weeks in advance or not months excluded on the basis that had just been provided the defense counsel and hence the reconsideration if you will of the motion was about six months later after you not you the defense counsel had the videotape for about six months a change in circumstances where you and i think the change in circumstance to answer your question yes there's a change in circumstances with regard to exactly what you said it wasn't a change of circumstances from the pretrial  conference and i think that's critical in the court and how the court views whether or not the government has met its burden in this case of showing that there was a a change in circumstances as to when when this particular presented when this particular issue was presented to the court and this is why i think rule seventeen point one and rule sixteen have to work hand in hand to give the litigants a fair to introduce evidence that had been excluded by the court could have excluded that evidence by a pretrial ruling and that pretrial ruling was the law of the case that's the whole point of sixteen rulings and that's the whole point of having a pretrial conference kept getting moved back but nevertheless he still was given the pretrial conference and gave so the government can say that well we're going to do something that is contrary to a district mr george of the opportunity to be the refrain from saying certain things certain things or to alter his trial strategy certain ways but in the fact of the matter is the day before trial mr george was operating  gives the government gave the government an advantage with regard to showing the actual placement of where everything was in the cell the issue there and this is not some of the issues possession so he had access to it you can see that he had access to it were we talking about this still issue of whether or not he he had knowledge and so the question is the government's government is honing in on the fact of excluding him as so yes the issue is not is not a smuggling case but it is a question of knowing possession and whether nothing government wants the government in trying to meet their high burden of proof whether or not they can exclude as much as they can mr george has been the only one who could have placed this at the very least this shank and even while he's sleeping this cell phone in this and whether or not he he would therefore have knowledge of it being in there so mr george this defense in this case is that look this is this is not your typical prison we want to show and this is going to get into the other issues of the that are raised on appeal we want to show that rules who was the driving force of things the government never even filed anything your honor the counsel who filed the motion to exclude those counts who received the order from the district judge it was counsel who then set a pretrial conference in this case and that's well there is there is testimony interesting lee enough that this was the rule of the of the facility is to all the doors have to be a lot at nine nine o'clock in this search takes place at twelve fifty in the morning but in fact there are doors there's even testimony from the government's witness that the doors are open two doors are open that that he particularly knew of and then count this was this was raised in the direct examination of officer joe's that a court was did not allow defense counsel to talk about how these rules are not follow when you talking about the fact that the fact that this the district court specifically asks the question to officer joseph how do you  the practices of other inmates going into other cells and as well as other whose responsibility i'm sorry in terms of other people bringing in contraband into the into the facility he was count mr george was cut off from exploring those areas areas even though the government on direct examination was able to establish that these other who's at the institution as if these are the rules that i follow what w get more information from this witness who had who would have direct knowledge of the practices that were in the jail of other people other inmates being in other cells of cell doors being a locked david wife and the united states that was that anticipation of the trial starting a week later the fifteenth trial actually got continued for six months so circumstances had changed materially by the time the order was entered during deliberations indicate that it's admission was highly prejudicial no your honor united states does not believe that it does if if for no other reason the tank was lost and you're aided by a live testimony so the tape is concluded that that cell was like a pipe by mr george so i think it would just be speculation as to how prejudicial or material the tape actually was to the jury weak evidence to begin with and there was other evidence to establish what the counters with the offensive hearsay language would have been from the kalar sheet for example recalled this witness that's true your honor the government did call the call if the government did call that witness so tell me about the i'm trying to figure out the importance of this video what the dimensions so you are i actually don't know the video itself i mean it was roughly eight to ten minutes  looks to me like a desk to area with books and personal effects and papers there is a little sink and toilet area you know i'm not overly conversant in the interior of cells but it looked to me like a rather many questions regarding it some of the you know what he climbs out of the truncated cross examination for example he got to ask you know he also george did you have a cell phone he got to ask you know were the but he actually did get to ask questions he also asked questions of officer just about what other guards you know are the guards search when they come in yes they are searched are the guards of have their cell phones no they are not did they have their cell phones no they did not they have personal  no they did not they have work cell phones no they did not so mr george actually did get to question the the the witness about you know his  further regarding the following of the rules so the government's position is that mr dorsey actually did get to ask a lot of problem questions that would have shown any motivation for bias or the motivation to testify on behalf of that particular witness so the government does not believe that the cross examination of the in any limitation on cross examination wasn't the use of discretion or did violate mr george's confrontational  in the numerous questions that were asked and indeed mr george was a boy do you think impeach the witness and demonstrate that his case you know he he was able to put out a plausible theory there so the government doesn't believe as they did that there was any improper limitation on that certainly came within the district court's discretion to control testimony and prevent you know irrelevant matters and easily confuse the jury it wasn't particularly relevant it really didn't go to the possession which is what this case is about which is counts char to the cell phone that's evidence obviously that's favorable to the government i don't think that that alone the no your honor i think that that this is exactly the type of evidence text message again they x to see the videotape again before they reached a verdict so i think that's the main point that shows that this was obviously prejudicial let me ask you about your third issue the issue with respect to  the count she why wasn't that litigated crieff why was an emotional woman they found soon as you found out that this individual going to testify to determine whether or not he or she didn't do or did not have personal knowledge but i don't think that i'm not sure that the government there was no indication that the government was going to have a witness testify as to the assignment of his cell or that the government there was certainly not going to be any testimony and this is the question that was elicited by the district court and self in terms of how he knows that mr george was assigned to it so there was no advance notice the government didn't attempt to they didn't have that in their  they didn't produce it at trial and so you basically had an invisible witness that mr joyce is not able to cross examine who made the statement in the sheet and mr george for that matter is not even able to look at the sheet she does that has not been produced to this this is what you can question him on and it was the district court will listen to the hearsay in the first place and then the district court your own history said well it can't be hearsay because it was on account of the officer testif conveyed the question was what's the basis for your belief that this was his cell essential and he said it was what he read on the counter she is not being offered to prove the truth of the matter that is that that was his cell being asked to state what the basis of his knowledge is i think when the district court axed it the difficult x in the sense of how did you know how did you know and when the information came in the offices says that he's he saw this on a on a counter she i think that that information is given to the jury for the purposes of proving assigned to that cell so for those reasons to believe it was it did come in for the truth of the matter asserted it was hearsay and mr george was not able to confront the witness who made that statement for those reasons he accept the court vacate the conviction