agent he's all on redirect told the jury that bligh mules extensionally only exist in cases involving the small amount of marijuana testimony that amounted to a claim that miss potentially on his defense was impossible because it depended on the never having happened to happen the law and frankly any basic notion of fairness require the defense counsel have that chance to question agent he's all about this credibly damaging testimony that the government can put someone in prison for a decade based on a free shot like that now the government claims that defense the defense didn't have a right to question isn't he still has nothing he said on redirect was quote new information based on what he had said on  regarding whose how he was going to be used as an expert and fence counsel parentline persuaded the court and the court kind of had a discussion about this whether or not you know whose expert he was and how he was going to be utilized so isn't there an argument to be made that the expert was really defense expert for for that purpose and that would have been direct test direct examination i think even if you  preliminary to the trial and it one of those hearings i think one of them maybe was a bird hearing i can't remember for sure and one of those hearings it was disclosed  through it's described as a motion in limine on the record but it looked to me like an expert disclosure that the government was going to call special agent and at that time the defense indicated that they ma a licit testimony from him as well on certain subjects is correct i don't think it quite worked out that way i think what happened is that in discovery that discussed the government disclosed to us lots of information on blind mules they then notice all to be an expert on the value of drugs right the government in fall emotional in a principally saying that we were not allowed to ask agent he's all essentially about the discovery that they disclosed to us but is it true that at the time of hearing preliminary hearing be held before the trial judge that you indicated to the trial judge that you may elicit certain expert testimony from special agent keyes will w he testified at trial correct yes that's correct ok was that actually did that intent actually find its way into any sort of a pretrial expert disclosure from the defendant so following up on what judge moore gives said and we haven't had a chance to talk about this but i saw it the same way it looked to me like what happened is that he was called for evaluation purposes by the government then during the course of cross examination there was cross examination conducted on that subject and then your co counsel at trial decided to convert special into a defense expert witness on the subject of drug trafficking using blind mules to get some favorable testimony it happened on cross i don't know if it was done through leading questions or direct questions but it was an attempt made by the defense to convert this government expert into a favorable expert for the defense and then on redirect which could be characterize cross i suppose by the government on that subject there was they they further explored the subject of utilizing mules to traffic in in drugs and got the testimony that typically it was done in marijuana cases and not the other sorts of cases and then co counsel proceeded to conduct additional examination  did your did you object at that time we didn't object because we were literally cut off from that question in the witness was told to get off the stand did you make an offer of proof as to what your questioning would have been if you'd been allowed to continue questioning we never had the opportunity well so we can ask did you ask the court if you could make an offer proof we didn't and i don't think the rules required us to and i don't think the rules required us to because for i think for a few main reasons one i don't think the judge ever really gave us a chance to do that that the judge cut us off in the questioning and told the witness to you know you're done get off the stand i don't think we need to interrupt the judge and tell him what we're going to ask him to to maybe give all credit to the judge it wasn't a mystery but we're going to ask right like the entire redirect had been about why mules we started questioning the witness about blimey holes i think the judge knew we were going so i don't think yes he wanted to hear an objection or hear a proffer he knew what more or less generally speaking what we were going to ask and he decided that information wasn't to let you bring this witness back as part of the defense case because as i read the the the papers before me it suggests to the there was this interchange that judge christensen scribed where the judge more or less says we can't have this caught on forever and and say and the telling us that we were wasting time by asking a witness question so i said i don't think we need to rest because i are by telling the judge that same when this do you think we're wasting time with we're not going to call him into ducked into more questioning you would have made well but i guess then that goes back to my initial point that i don't think we needed to based on the context of what happened here i you know i think just as a matter of the rules and a rule fifty one we were required to say more but said setting that aside assume i'm sorry let's was across and you weren't allowed to recross like you would have liked and let's assume that this is a new matter was raised although i'm not sure that that's true  because of everything that the defense counsel was able to ask on their car and their cross or you know what you're calling the cross and what was called the cross down below let's just assume that happened what what is it that you think would have made a difference in being able to to follow up because at this point we're trying to figure out if what you have indicated in your briefs would really affected the outcome of the case and but you have outlined in your brief is for four sort of questions and i'm not trying to figure out if that's enough it's some some of them seems like they would have been cumulative so give me your best argument i think the the crux of i think their argument is that the most damaging thing agent he's a whole lot of tell the jury is that blind mule do not exist in cases involving a small amount of marijuana which was the equivalent of telling the jury that ms pinsky on his defense was ashamed he said but he didn't say in every case and he qualified it and said in most cases it was you when you have just come back and said well that's not true in every case you know because what the jury never heard important information jury never heard which the prosecutor told the judge during the motion on a hearing is that agent he's all it's not as if he'd gone out and done exhaustive research on blimy was in the country the only thing he knew about blind wills was from the random conversations he might have had with other agents and the discovery in this case that the government had been producing that was it so if i were injured i have someone tell me that i know that it's just not possible it's very very unlikely that blinds exist these sort of circumstances i do the test me very differently if i'm told that this person didn't exhaustively cover the idea by mules and especially because all of the agent he's under standing about blowing mules was cases involving a random people who had been randomly selected because of their repeated crossings at certain times that wasn't artifacts that our defense was that the drug traffickers knew our so you knew that at the time that's why you wanted to further recross yes but you did make a profit but this information come out in front of the judge pretrial so the judge knew it we knew it we started asking questions about blind mules so i don't think it was any mystery to the judge what we were trying to get well i don't know i mean as a trial judge you know frequently i change my mind i might say i'm not going to allow certain evidence i think judge gould makes a very very valid point that is you could have subpoena need special agent kiesel brought him in put him on the stand and if judge benita is at that point the said said i've heard enough from special agent he's a lot i'm not going to allow you to ask this witness any questions then i would understand you might have an issue here but i'm just i'm concerned about the lack of self help here and the fact that you apparently concluded based upon the fact that he sue us wanted to excuse this witness that it wasn't worthwhile for you to make a or object call this witness and persist to a certain point to see if you couldn't change the judge's mind and get the testimony anyway that's a speech not a question let me ask a question  in my court i tell the lawyers on the record before a trial that there will be direct testimony cross examination redirect and no recross unless new material comes out on redirect that is prejudicial does judge benito's have a similar practice did he provide you with similar advice he didn't action on the record he definitely didn't and that is not his practice i've actually never seen him cut someone off on recross before and in fact in this case i believe at least one if not to the witnesses or subject to recross all right thank you do you have a question yeah and of course i didn't practice criminal law practice civil law in trials and so maybe this says no and outs but in a in a lot of cases i would think if a lawyer was cut off in that way on their examination the lawyer would at least say your honor we'd like to ask two or three more  questions this or that subject it will take a certain amount of time like they wouldn't just for their tests and then later say there's a constitutional violation so that's really the part of this case  i'm having trouble understanding you know the opponent's position on this is why didn't they pose a lawyer at least give the judge some idea of what else they wanted to ask or strategy is knowing your judge and knowing whether the judge would be receptive to that sort of thing i think here the reality is is that i don't think judge me just would have wanted her to hear the exact questions you were going to ask given that i think at least it was sort of obvious and contacts i think that's at least the counsel in the face of a judge who's obviously a little annoyed with were questioning was going to interrupt him and give a proffer about what you were going to ask when least from trial counsel's perspective was sort of obvious in context and i think the sort of the same calculus applied when you're trying to determine whether you should have recalled that same witness when you had a judge tell you that you're wasting the jury's time in front of the jury and then ask the judge to have that same witness be subject subjected to additional questioning in your case it's maybe uncomfortable it seems like you know making a record is important and it would also give the judge whether judge news or any other judge an opportunity to reevaluate his prior decision here even if it was right in that moment at the very next break before he left you could said judge you know kind of soft but and we've had some discussions regarding this before really think it's important  decision the rules expressly tell us we don't have to do that once we've objected or once or just cut us off we don't have to ask the judge to revaluate in order to preserve an issue for appeal you know if you didn't address it well but we didn't object because you know we were cut objection really would have been an exception and under all fifty one we don't need to raise exceptions even if sometimes maybe this is the case that that might have been best practice to response did the government jacked when the defendant started getting into material that was beyond the scope of direct examination well your honor in the in the pretrial hearing there was a lengthy discussion about whether this expert was qualified to testify and blame us and judge benito i said how is this within the scope of direct and defense counsel fought very hard to get allow this order freezing taste and he argued it in the morning he came back in the afternoon with a transcript of a prior case and this is how we want to do it eventually the government said ok that's fine the rules do allow in the courts discretion and the court can allow new matters to be raised in cross examination and so that the government's allow the defendant to convert your witness into a favorable expert in the course of cross and got in the testimony that the overwhelming majority of these cases were there curing drugs or marijuana cases and then on whether we want to call it recross or redirect this to that issue do they have a valid confrontation constitutional argument here no your honor the constitutional argument was not preserved which i think is what the court was touching on during the first part of this argument counsel sitting down when the court cut her off were enough to preserve some evidence harry objection this court has said in numerous cases that when that a confrontation clause our argument needs to be specifically preserve so there are fifty one would it require taking an exception to sort of the evidentiary analy which is the sort of the cutting off of recross examination which is that is within the court's discretion but as to the confrontation clause issue there was no objection the defense counsel had numerous opportunities in that moment taking a sidebar that government rested right right after that testimony at that point defense counsel could have proffered the questions or even just said your honor we believe that under the confrontation clause we have a right to further recross examination or when the defense began its own case in chief and called two witnesses and so we as judge gould and your honour's noted that it could have asked to recall each and he so this is not this isn't a defense counsel who is afraid to fight for the defense that they wanted to raise indeed they did that in pretrial so so it's just not reasonable on this record to say that defense counsel didn't have an opportunity to object but i believe your question uniformly how that the standard is whether there is new matter elicited that in on redirect as to that new matter there than there is a right to recross and i don't think it was obvious that there was new matter that the blank real testimony that first came out defense council focused on two things a blind drug trafficking organization needs access and opportunity they need to be able to access the vehicle and they need to know where the vehicle is going and that is that was the essence of the cross examination which was effectively the direct examination the majority of the government's redirect which was the cross examination on that focused on those things access an opportunity to the extent that the testimony about the majority of cases also came out there that was not in and of itself obvious to anyone that it was some something brand new that no one could have anticipated that there was a constitutional right confront but this court doesn't need to three and four plane error if you and the failure to preserve bears on both plot prongs to three two three and four let's talk about the harmlessness now it's just seems like the blind mule i think you'll agree  all clear obvious that there was new matter so there so the plaintiffs but if you're talking about the substantial rights problem or the harmless well beyond a reasonable doubt prong but i mean if the research was just talking to other people that's not insignificant i mean the way the agent talked about he done some extensive research on these in this area and if all that was as is being proffered now that it was just him talking you know to people and his colleagues that's not  could have call recalled that witness in their case in chief in another itself shows that there is harmless and we certainly have that here that the agent was there the defense chose to use them as their expert and they certainly could have said especially in the case of their defense case that the judge benita this is critical to our defense we need to call this witness i don't think judge when he does would have said no no you've already done it and then to the sort of other factors which this court set out in the baker case that the jury could easily infer that this abusive boyfriend is not going to trust his girlfriend with all of these drugs without telling her there in fact she even testified i mean you are to eleven that the reason he was deported because she called the police on him when he threatened her so i think there is ample evidence in the record to show that the jury was not going to believe this and knowing her your defense even if the idea that the experts just me were completely neutralized so i think i'm both of those bases you could find both no effect on her substantial rights or that there was any error was harmless beyond because someone wasn't allowed to cross examine that all this is the only one that i've considered that deals w case or they're already published for instance from our court or the supreme court dealing with that specific your honor with the ability to recall that specific on the harmless error analysis but i don't believe this court has ever found that the ability to recall a witness itself is determinative in harmlessness but using the other sort of those circuits and yes your honor  it's like and i quote as far as i know he has no experience to know in couriers so to been something along the lines of the same way he gained his expert knowledge which is talking with his fellow law enforcement officers and talking to people that he's interviewed that would be the basis for his knowledge that's that th jury never heard that secondly the recall cases without exception every recall case the government cites to with where the defense was able to recall was allegedly allowed to recall the witness and i and the judge heard that in your prior discussions so you're saying yes that they came out in court in the discussion of what this witness knew about the i mean all right all the cases the government sites too in which the courts at a certain courts have said that you could have this recall the witness single one of those cases were cases where the the court had a bright line a role there was you cannot read or write and so you cannot recrossed period and so the impediment to calling there was no impediment to calling the witness as your own witness whereas in our case there was an item in the court