would have done me and what my what his story once we it's very very vague terms of how we can understand why any of this matter well i do think there was a proffer your honor the fact that there was a prior relationship was told to the judge to the district judge by the attorney the fact that mr when i thought that this was his only chance to to win i mean he said without him i'm mostly guilty  you know he's saying that's what's going to happen i need this witness this isn't some character witness he's going to talk about you know my reputation in the community in my case this is the guy thing knows how this started that knows he can remember the evidence in this case is that he was approached by the informant started by the informant he wasn't targeted by the police the police had assuming all of that is true from where we sit we have to look at the record and we have to ask the question was are sufficient showing in the record as a whole to let it go to the for the informant but he's also simultaneously a coconspirator and what is very confusing about the strange played as well well exactly your honor and i certainly think the government has proved a conspiracy with them but the problem is this mr wynn is a buyer he's not said i've never seen this guy before in my life he's the friend of another coconspirator the levy who he's like i hang out at the lease house you know we're friends  he talked about other people who were the least friends he's never seen this guy before in his life the people who are indisputable coconspirators they didn't let mr when near that cocaine charge that cocaine i mean there's this very weird privy to their very much and indeed he has a different purpose he's seen by them as a virus they're seen by him as a seller i mean he sees them as sellers he's not privy to their overall he's in a hole i'm not sure if they think that is a point your honor i think his role is slightly more complicated than middleman because he's directed by this informant i mean it many many times and i if he doesn't make it but you know go all the way back to the road we're ok and drove your case is about getting the identity of an informant right but what's so testimony might have just closed and entrap much and that's why these people are so important is because they have things that aren't on tapes they don't  compositional informants stands in special shoes you can't you know look out in the yellow pages confidential informant and see where they live and i'll call them the government has a a unique control over them and when you're getting conflicting representations that their number one witness is going to be a trial and then it is not going to be a trial in a trial three that's usually not where you look i submit that mr wynn and his attorney acted at the first chance they got actually to after the translator testified this is before sergeant ross or anything that's when mr when stood up and said without this guy i'm mostly guilty and you know the district court at that point you know when at the end of that day's day you know i wish the government would bring them i think they degrees in their interest of right now you know they just injury selection which actually made it into this transcript and it is included in the excerpts there is at least one person on the veneer that did understand there's no showing there was a video or another out of you but a tape player you  entire time the information has recording equipment and is not recording this entire thing that's happening before so what we get is this just small snapshot and even then w have that snapshot at least see that this person with no criminal record essentially has his will over run do you know there's this huge period of time we don't know any of the steps that happen the record seems to be there on that is or there was no tape player the tapes were made in evidence for one reason and one reason only as part of the foundation and the chain of custody for the transcript put the case agent on the stand talking about how the recordings were made we introduced the physical recordings that way when the interpreter testified he was able to look at the physical recordings and say yes the tapes i think especially if you're in a room just because all things two percent of the time all the evidence goes to the jury room their physical exhibits there is nothing in the record at all to suggest that there was any tape player or any other ways to play those and there was no and there was no objection there was no objection to those tapes going back into the jury room by the defense counsel  in our trial free file that we can advance that we can find the informant and we don't expect that we're going to have him a trial however we never knew if we might find him the next day the hour before trial and we didn't want to have the defense then jump who was the identity of the confidential informant and made known i don't think there's anything in the record about that i would estimate that you made disclosures about three weeks before trial i remember  he no because that was the person he'd been dealing with so he knew who had set him up that was clear from the papers that were filed in the case for example the complaint the initial charging document said such and such a person  they couldn't find a regional leader to make anything of that yes i think that's the reason that his attorney was unable to make any kind of offer about what the informant's testimony would have been and the l detail what the expected testimony will be why it's relevant why it will be beneficial so why couldn't mr rove the trial counsel make an offer for proof after all the relevant evidence that they're expecting to get from this  he didn't do anything like that and in fact he said this is this is a blessing this is a good thing for the fans because he knew that he could take any kind of offer proof and you can take a look i think it's in the supplemental excerpts of records of pages fifty nine to sixty one the discussion lawyer but i think it's important to look at the context of that conversation like i said this was on the morning of the second day of trial the question of such as you have counsel it come up twice already on the first day of trial it came up appear it's not going to solve the problem later that day judge could our on his own raises the issue again with mr wade and he says are you satisfied to go ahead with mr rove as your lawyer and lynn says again he he's trying to do is fire is annoying but at the same time that is how it works you do speak through your lawyer as long as your lawyers pointed and there was ample evidence i mean time and time again mr rove got up and put mr green's position on things on the record he said mr wynn doesn't like that i'm sufficient information to reach an informed decision and that actually comes from i believe the the smith case united states b smith two eighty two f thirty seven fifty eight two thousand and three days this court held that the dear fact that the court doesn't specifically inquire of the defendant is not automatically fatal error you look to whether the court had sufficient information to reach a decision and i think after having talked a couple of times already about the request for a new counsel with both women and mr roe having heard that mr rove still communicating with her and still knows what issues are important to women what their disagreements are i think the court have two cases from the one nine hundred fifty s from i think the third in the fifth circuit's those pieces didn't involve conspiracies in those cases the defendants were charged with being selfless with actually selling the drugs of sale now if you look at the facts of those cases they're actually comical basically which out and full of those cases is an informant who according to the defendant anyway pretends to be a drug addict who is in the middle  with drawls and is in terrible pain and he it costs this poor guy on the street he says please please please here's twenty dollars find somebody get me some drugs i'm in terrible pain and the defendant just out of the goodness of their hearts then goes and find somebody to get some heroin there's nothing in it for them they get the twenty dollars they bring it back and they give it to the informant and then they're charged with selling drugs and the court said in both those cases this person is not selling drugs they are just  agent for the buy those cases are light years away from this case first of all we have different charges conspiracy and aiding and abetting so the legal analysis is completely second the facts are completely different hung in was deeply and profoundly involved in this conspiracy he went to great lengths to make this drug deal happen counsel for appellant has cited some things in the transcript where he says let's not do this i don't want to do this the transcripts are in appellants excerpts of record they're about twenty five pages long i defy anybody to read those transcripts and come away thinking that hungry and he's talking to this woman there's this running dispute about where the drug dealer is going to ask the informant wanted to do it in a hotel or some neutral location because d h thought that would be the safest thing hung winces no it has to happen conspiring not with the informant nobody ever alleged that there was never any suggestion that by the government he's conspiring with the other people on the source side of the deal by the doctor in the room and zhuang way and another thing that's really interesting is hung with his behavior when this drug deal is supposed to happen first of all he spends most of that day hang out at miley's apartment conferring regularly with violating the other spirit is trying to make the thing happen to mr broker bricks he cut each one open with a knife and checked the cocaine with his fingers then he taped them back up and they went back into a backpack and they went back out into a van that was sitting in the parking lot in the way the drug deal was supposed to happen was that the drugs would sit there in the parking lot and that unlocked back again about one point five million street value in cocaine and the informant was going to come he was going to inspect the drugs by going alone into that van and if you was ok with them then they proceed to consummate the transaction the informant would pay them and they turned over the drugs so where is hung when when the informant is supposed to show up and inspect these drugs he's up on a balcony with duct then food and by leave watching the parking lot with a good view of that fan waiting for the informant to show up watching when the informant shows up and goes into the van and watching over the drugs miss the prejudice of this point if they couldn't have been heard and you know i i certainly i'm with you and that's why i began it that it may be a moot point all right let's let's not let's not resolve that on there wasn't clear about that i covered in a footnote in michael brief kind of a difference in the loft between the two the government also mentioned aiding and abetting the problem with that charge as the government of pages twenty six to twenty seven of their free sets forth the elements of aiding and abetting possession with intent to distribute cocaine and the second question your arm you know here you have these admitted they're such a central part of the case as to mr went because one when the only testifying coconspirator doesn't know and backwards the jury sent a jury no doubt wanting to know about the admission of exhibit four b which was one of the transcripts wanted you know the testimony about the admission and the testimony that they're reading back and forth i can get the exact records cite for you but they wanted to see that and so therefore what it what is harmful about this is that the government gets one picture and then the picture changes so then therefore how is a person supposed to be on notice and defend against the moving goal posts and that is what's harmful about  matter because they weren't subject to cross examination they weren't subject to putting more context so that the jury could see that so that the government so the so that the defendant had a right to present remember was something to the effect of seeing some people down there seems something in things about the parking lot in that time and the nature yes and that was relevant to well it's relevant to him being there remember the government just told you all about you know what they've term counter surveillance is that sort of thing and certainly would be harmful i mean their support they're saying is that these aiding and abetting charge or if the aiding and abetting possession of drugs