number of robberies in the trial which was highly unfair there were a number of witnesses who testified about the actual robberies but it's important to note that not one of the robbery victims identified mr martin as participating in those robberies or described anyone that matched his description what that left us with was the testimony of a cooperating witness this cooperate in witness was in custody in state prison he ran the robbery operation from a cell phone or a series of cell phones from his pr it just one cooperate in witness or two there were two there were a father and son team but the only evidence against your client so the only evidence against the clients there was a pretty substantial amount of evidence against well i wasn't there i mean he rented most of the cars his cell phone put him in the area most of the robberies the cooperators participated in phone calls that were recorded and those discussions including people that weren't cooperate ing incriminating your client so to tell us that it's all about one cooperate in witness kind of short changes the evidence that was offered up against your client if i can put some of that in cont your honor what we started with from the primary cooperating witness was a script mr nelson decided early on that he was going to cooperate and in preparation for his cooperation and for his interview with the agents he wrote a list of robberies that he somehow knew about not all of these robberies were robberies he participated in many of them had nothing to do with mr martin and yet this list which was composed we don't know how it was composed a lot of he testified to some extent that in some cases people told him what happened but we know that this list is not based on any kind of personal knowledge but everything on the list was testified to no not everything he testified that he made the list he testified about making the list yes but he did not testify as to every item on the list and yet the list was admitted as an exhibit so that the jury can speculate freely about the items that he didn't testify and also though a lot of what he did testify to again was not based on his personal knowledge so there's no basis for admitting even some of the testimony that was based on the stock human what was most unfair to mr martin though was the use that was made of this at trial the witness didn't testify at trial from his own recollection the witness was handed the list and said oh what's the next thing that you wrote on your list what's the next thing that you wrote on your list it takes away layers of mr martin's ability to cross examine and confront that witness regarding his memory regarding again his quiet i mean there to do what how does that inhibit cross examination it does this is being used as a as a device to lead the witness through testimony and a bunch of events for the list itself doesn't really say anything and there's nothing that i can see that limits cross examination  whatever it is the witness winds up saying about those events the list is actually quite detailed about what in matches the testimony i mean that's the problem it's the same as if the government wrote a script and said here this is what your testimony is going to be about since we don't necessarily need you to remember it we're just going to give you that script so you can read from it while you do your testimony if you just look at the first item it's a very detailed description about what event happened he didn't i'm not going to last in front of how i'm looking at the list so so the jury has this what is this what is the jurors supposed to infer from this list the juror has heard testimony about some of these events well that's it testimony that the jury might understand but this list isn't going to tell the jury anything that it didn't hear in the testimony this this list is is looks like jump all by itself by itself but if you in context of the testimony some of the terminology is explained but also this list refers to an entire set of robberies committed by another person and his team  that has nothing to do with the martin case and yet the jury can be left to speculate whether it does or not it just leaves too much too much room for speculation on the part of the jury and too evidence again and judge clifford has already alluded to this and that is martin rented the s u v s used that read in at least four of the robberies he cellular telephone was in the vicinity of each robbery as it was occurring he made incriminating statements on recorded telephone calls and his explanations for his for his conduct were subject to this belief therefore the government says  but i'm wondering if you could articulate why that reasoning is wrong the recordings that the corps is referring to were not made in the course and scope of a conspiracy the recordings that the court is referring to were made from this day present at the direction of the government by mr nelson they weren't part of the conspiracy they were they were designed specifically to set up an incriminating response we don't know if he would have gotten an incriminating response other than the the way these phone calls were laid out mr martin tried to explain his relationship with mr andrews which was his way of trying to explain why he rented cars from mr andrews because that's just something they did something he'd done for years they've grown up together they knew each other so mr martin whether you believed him or not whether the jury believed him or not tried to explain some of these things but it was this use of and the informants to bring in statements that were not part of the conspiracy this include statements by mr andrews which directly incriminated martin which  were included in the briefs but it is also wrapped into the use of mr martin's testimony improperly to vouch for the testimony of other  what's the difference between that and asking is the witness telling the truth or not he has no basis for answering it first of all but it's equally improper question the case law that i've cited in the brief that support that kind of questioning i think that's greer allows questioning such as you know you've heard testimony x y z yes or no and then you can go on to ask the defendant then his own version of the facts that's not what was done in this case he was asked whether or not a robbery took place based on the testimony you just h says it's over the line to ask somebody are these witnesses lying is there any authority that supports saying that the examination here is the same thing or is also over the line i think that the focus of the cases that i'm familiar with are on the notion of making the witness agree that somebody else is a liar i think that the court's correct in that i also think that there's a lot of gray area within those cases i don't think we have a bright line test that we can apply what's the best case that would you would cite to us for saying the formulation here of the question was improper there is a case that was written and i don't necessarily agree with that about it has to actually be a law yes and there apologize i'm not here there is a case it's actually on point i can't remember what th explanation for that was not the best and the evidence also was that he rented the cars used in the robberies but there's also evidence that he didn't necessarily know they were being used in the robberies he said he rented cars frequently but he also when one of the cars was impounded made a phone call to the police to see if he could get the car back but he that's not classified right at trial he did it and  we look at the evidence in the light most favorable to the two to the government understood but the court also has to consider whether the evidence that came in came in correctly it came in within the rules of evidence and whether or not mr martin received effective assistance of counsel with regard to evidentiary objections which should have been made and weren't made and with that i would like to reserve my remaining time for a bottle  still morning so good morning and please the court pearson all fien ited states the district court did not err let alone plainly error in its evidentiary rulings the trial nor and at sentencing guidelines calculations therefore martin's conviction and sentence should be affirmed first the district court did not plainly error by admitting plea agreements of two cooperating witnesses after martin challenge both their credibility and biased during opening statement and cross examination and where the district court gave a clearly appropriate limiting instruction second the district court was not required to sue a spontaneous strike the prosecutor's questions on cross examination that did not require martin to call other witnesses at trial liars but only asked of martin agreed that certain testimony had been given or that certain facts had been established third the district court was not required to a spot a strike a handwritten list of robberies that was admissible as a past recollection reported and to which martin did not object and which he actually used during his cross examination of mr nelson at trial and fourth the district court did not play in the error by admitting portions of recorded telephone calls between a cooperating witness and a coconspirator or martin's own statements demonstrated that the conspiracy was ongoing and the statements were made in furtherance of it finally the district court made clear and explicit findings that martin's testimony at trial consisted of material false statements that he made willfully going to the robbery list i would simply like to correct or make clear that the list of robberies was based on mr nelson personal knowledge as he testified at trial he was the person who contacted the victims he was the  his son testified was very persuasive he was the one who who spoke to them over the phone from his contraband phone in prison and convinced them most of them to fly into the bay area with their expensive jewelry and watches and sell them so that the robbers would have the opportunity in addition as he testified in most cases one of the robberies robberies usually mr andrews would call him and he would be on the phone as the robbery was occurring and so he could personally hear what was going on and then the coconspirators would inform him of the exact details of the robberies afterwards so he did have personal knowledge of this list moreover as the court can see the list which is excerpt of record seven it is a of handwritten notes that are barely legible to anyone other than mr nelson and mr nelson did testify to what was on the list at trial that this analyst was it came in as an exhibit it did come in as an exhibit without any objection it was on the joint exhibit list submitted by both mr martin's counsel and the government and you agree that that should not have gone to the jury no your honor as this court has pointed out in the past it is not the province of the trial court to interfere with defense counsel trial strategy when defense counsel chooses not to objet suppose there had been objection if there had been objection then we would have a much better foundation laid and the record that this was a past recollection of recorded and was properly admitted to the jury but because defense counsel didn't object the government was not obligated to lay that foundation it did go through most of the steps establishing that this was based on mr martin's mr nelson's personal knowledge  made at or near the time of the events he made it shortly after he was arrested and establishing that his memory was better then than it was at trial so do i hear you to be saying and maybe i'm misinterpreting what you're saying that  from counsel's problem doesn't the government have an obligation to introduce evidence correctly yes your honor and the government did do it in as i just stated in an abbreviated fashion the government established the elements for a past recollection recorded it i'm simply stating that the government would have done it more clearly had had defense counsel objected at trial and yes the government does have an obligation to do it correctly however as as one of the li earlier argument suggested if for example defense counsel stipulates that something is a business record the government does not then have an obligation to go through on the record and establish that it is a business record and here a lot of us in the argument could be made t those kinds of issues yes there are however here the procedure was that the the district court required the parties to submit a joint exhibit list which they did and martin's counsel objected to some things that were that the government wanted to introduce at trial he did not object to this this list of properties this exhibit fifty he objected for example to a manifesto that mr martin had written and the district court excluded that he did not object to this and so because he did not file a motion eliminated because he did not object to including it on the parties joint exhibit list the government had no reason to believe that he had any objection to introducing it and so that's unclear so it's on the exhibit list is it introduced into  a pass recollection recorded and used it primarily both sides used it to refresh mr nelson's memory in addition there's no prejudice or actually because it's plainer it does not affect mr martin substantial rights because it actually fits the reason why his trial counsel wanted to use it is because his name does not actually appear next to all of the robberies that mr patel nelson testified that he participated and as his counsel pointed out at trial in an effort to impeach mr nelson and claim that mr nelson had put mr martin into robberies where he wasn't actually a participant because his name wasn't listed on the read the list and to try to call into question mr nelson's just so there's a legitimate demeanor in the courtroom and this is not a question of impeaching regarding the evidence that's before the jury so what is the point of asking the defendant whether he agreed to certain characterizations if only to perhaps plant in the jury's mind that you have a defendant who  who is not truthful your honor there was a very specific purpose which is to point out for the jury that the issue that they needed to side that was a very narrow issue at trial defense is trial strategy as established through his direct examination of martin was that mr martin did not challenge that the robberies occurred the specific items that were taken that they travel to interstate commerce he did not challenge any of that or that the robberies amounted to involve violence none of those elements were challenged by mr martin at trial the only element he was challenging was that he actually participated and so what what the prosecutors did during the first three pages of out of the ninety one pages of cross examination was simply established for the jury these are the things you don't have to worry about because they are not contested the things that is contested is whether or not he was there and that's what she spent the rest of the eighty eight pages of cross examination doing was establishing that he was in fact there so there was a reason for her to do it in addition the manner that she asked the questions mimicked almost exactly the manner that martin's own counsel had asked him similar questions on direct where mr martin's counsel would ask him do you remember never said his counsel never challenged that the victims were lying that the robberies did not occur it was simply to establish the narrow issues that the jury needed to decide and as this court decided in greer under pla air this court or the supreme court would have had to say the specific formulation the prosecutor used was was eroni us in order for this court to find on planar review that those questions were improper and this court has never done that and in fact in greer this court stated the only time this court has held that questions are running is when the prosecutor specifically asks whether or not the witness was lying which the prosecutor did not do here she didn't even ask if the witness was inaccurate and in addition the answers that mr martin gave show that he had leeway to answer the questions yes answer the questions no or to say which he said many times i don't know i don't know whether the happened i don't know what happened there and the formulation of the questions allowed him to have that your honour's before i want to correct i believe i cited the greer case in response to one of the court's questions but the case that i was referring to is miguel in the greer case the court does pacifically declined to  decide whether something less than a direct are you line question would it would trigger an error and i think the point is you can ask whether someone's lying in many different ways you don't have to actually use the word lie and so the question is whether you're really asking that question where is your opposing counsel says when you ask if you agree there's a lot of you know you're not changing to is saying that someone's actually lie and in fact you can say i don't know and the basis to agree there's a lot of different answers in this case that are you and do you agree ask specifically about who participated it didn't necessarily refer back to specific testimony and to that extent i think it triggers the are you lying kind of response i also want to address the issue of pass recollection recorded with regard to the script that it's just the past recollection recorded foundation was not laid and even first of all the document was admitted long before any attempt was made to lay any foundation the witness had not testified at all regarding his inability to recall it did not appear he had any inability to recall instead he was handed a list and said here you can read this for your testimony even if they had somehow established that the witness had a lapse of recall here or there the document itself would not have been admissible it would only the defense could have offered the document itself under the evidence code so the idea that the government could have admitted the document itself this past recollection recorded is not supported by the law remind whether in the closing arguments whether either counsel referred to to this exhibit i think everybody referred to this exhibit was in and it had to be dealt with in the plea agreements ignition the plea agreements also bolster it was to bolster the credibility of the the cooperating witnesses and what's really critical about the admission the plea agreements is that the plea agreements as admitted included a four recitation of facts which the witnesses at mid as part of the agreement so what the danger is from that is that the jury can say look ok this is the truth this is what the witness