to relate to the performance prong and then of course there's the prejudice with regard to performance it's our view that the judge's opinion cannot be sustained number one because the conclusion that this evidence questioning of agent the dreamy should have been excluded is wrong the the evidence was not hearsay based on a rule of evidence that we admittedly belatedly presented to the district court but the district court was good enough to consider this identification that's i met up with these people to discuss the transaction and then she received the narcotics each time there was a second man sitting there and that man was recovered that is a pure statement of identification or if the question probably should've been more pointed did passenger seat and judge dubois says correctly that the first part of that is not identification the first part of that taking the drugs putting him in your pocket are additional facts but our point to that is those  presentation to the jury is where the error comes in the house will not have that to that well our point is and there are two points you know like i said we have separate argument right and what part of it it's a good strategy and i'll get to that later but just with regard to this is he giving his imprimatur is he adding to the evidence absolutely this is admissible evidence this is what the government does what role that you didn't it is not identification that's true but again had this objection been raised by a competent counsel having chosen to follow the strategy that the judge thinks he should have followed these questions could easily have been immediately pared down to the only thing anybody cared about which is the question phrase who was the other person in the car the government doesn't need to ask did you get two hundred thirty grams of heroin to put in your pocket an agent saw that they went up and grabbed rodriguez at that moment took the bag out of his back pocket it had two hundred thirty grams of heroin so again when we talk about what really matters here which i just replaced says the lawyer should have done if he was acting as reasonable counsel of shelter the testimony is only about the identification that's on and even on that point if i may the cases that you cite locus case among them makes clear that the most frequent application of this provision of what is not hearsay under the rules is when a witness is identified the defendant in a lineup were photo spread but then forget to later changes his testimony at trial here we have a very different context there's no lineup or photos right or any kind of more reliable than word identification police arranged an opportunity to make an identification what is your best authority for applying the exception i don't want this kind of your honor's absolutely correct that the case is generally every case that means we could have the following situation right the even more identification is is not at issue right i mean here my heart is not saying i was a car right i  had said you know i mean in this situation we know that they saw them when they were arrested they didn't see them on the earlier instance but say the facts were different if you had an agent who had seen  the wording of the state of the of the rule but it's not something to me that there are no cases that support this particular report it is fully compliant around and let me tell you why ok first of all in terms of cases supporting it this happens every day and let me tell you the classic later was there a line of who did he identify that is admitted it is further admitted consistent with this rule that the witness that shows up in court doesn't have to be a cooperate or and can be asked the same thing as you said here today do you see the person in court now why are reason for this rule allowing identification statements not as a hearsay exception but not as hearsay at all because it's in rule a well one is because identification closer to the time of the event is seen as more of a liable what the rules makers decided was that when you have an identification that's made five minutes ten minutes a day after the event that is more reliable than somebody sitting in court one year or two years later and that's why this distinction of recantation versus not we can't ation is not what any of this is about what this is about is the rules makers deciding that identification testimony even made out of court is more reliable closer to the of that show and that's why this happens on a daily no reasonable attorney i would suggest could think that you can make this objection if you boil it down to they're going to haitian who was sitting in the car when you're asked that five minutes later and think that would be excluded and therefore it's not constitutionally ineffective assistance  as you know that he was just making this up what was in the statement to the dreamy that could be argued was also a fabrication both of them were after he had a motive to cooperate so i i statement and went a different way in terms of what what is eerie was but it seems to me that again it's voiced premised that by allowing it he took away the opportunity to this case is the district court is selecting one strategy that he prefers as better than the strategy the defense counsel selected and that we think is an error as a matter of law under strickland and many many decisions of this court where you  because noone is so going to get on the stand and say he was there all day long the other half and the judge mentions this the writer alluded to it the other half is you need to go after rodriguez you need to go through all the normal impeachment which the district court suggested  cooperating witness is that so much again you need to go after him and say you're making it up the only time a powder was there was the last time and you're making it up because you want to create an effect and this is where skill that testified that wasn't my strategy are saying at no time from minute number one did rodriguez ascribe any action from a car to whatsoever he said or even me the mercato sitting in the passenger seat and the drugs come out the passenger window rodriguez says i don't know strategy but the point is is that even accepting that strategy not objecting to the dream is inconsistent with strategy is nope there's no strategy that was articulated that is consistent with letting the entirety of renie's testimony because no strategy that allows that testimony is is helpful to work harder because all of  exactly and when you read the closings and it was very helpful that the court last week asked us that we submit closing arguments he explicitly says i think it's page thirty seven i think of the supplemental policy explicitly says to the jury i accept rodriguez agent and rodriguez mercado did nothing he sat there and he was a while and evidence that he was merely present and clearly there's evidence he was present but you've got to find an act on the part of america right so he'd like to dream his testimony because it shows that from the not just the trial but from the very first moment that the rodriguez is arrested when his motive to cooperate is at its height even then with mercado sitting right there in the passenger's that not supposed to second guess it well and but but my question is this was there any other testimony other than mr riggers that put had to call an actual witness at the end of the trial to make it clear this phone was taken straight from a crowd up and then there was no real dispute about that in closing in front of the jury a but i want to get the strategic point is really what this is all about as your honor says which is that the late defense counsel here has to make a call he could go after right rate he could say your cooperate or and everything you just said about mercado being there all day is fox but that puts him in a tough spot because he likes the other half of  risky runs is that if he and i'll come back to that again if if he fails in that attack on rodrigues that he's lost the jury if the jury says look we've seen the phone calls we know he's sitting in the car when he's arrested we know a second man is there when the drugs are delivered  say that it would that choosing not to be somewhat inconsistent that is telling the jury i want to believe this guy when he says mr ricardo did nothing but i don't want you to believe him when he says mr ricardo was my shadow all that is that crossed the line beyond what strickland permits yes and it's impermissible what the supreme court says in strickland is that west counsel makes a strategic choice and it's just you know strategy not to do anything at the death penalty heart of a death penalty case well you know that the supreme court has suggested may not even be in effect but this is a very high standard and the defendant has the burden to show not that he made the wrong ca horses that leads the judge to say you know i can't think of a plausible strategy which would allow this testimony you agree at least theoretically that could be what we have here is very purely a choice of two strategies i know mr feinberg my seventh district judge found there was no sheriff i don't think that supported by the record or by mr steele his testimony we have two strategies we have the mere presence the facts he wants to make it brief i'll try though the here's the point which is we're looking at that is in hindsight which supreme court says you can't do when he says it and we're looking at it when this was on direct appeal it was a different standard of review and  nine the standard of review one of twenty nine is known as well now actually i have the benefit of being here in a week for the end bank argument on this issue i'm sorry we won't have rosenthal with us but as we know the standard on rule twenty nine is only are there is there any reasonable inference it would support of or even if there's an equally good contrary inference that would support a finding of not guilty but defense counsel a trial is not looking at that he's not saying to himself oh i'm really worried about what's going to happen i will twenty nine if i lose this case if i lead in this evidence about mark out of the present all the way the third circuit is going to say this is a really close case but that's a reasonable inference that repeated presence equals involvement he's not thinking that i'm going to lose will twenty nine he's thinking how do i win with this jury and this jury isn't looking for reasonable inferences one way or the other if it finds equally reasonable inferences it may go with my inference what i'm here for is to convince the jury of reasonable doubt and i've got a shot and my argument is ricardo sitting in the car he's a friend he's riding along and this government has not proven that he did one single thing that he even spoke once did anything he handed anything that's my shot and he's decided to take that shot and we have never seen a case in which an appellate court has held that to be constitutionally ineffective assistance to make a strategic call and then of course you know we have the prejudice argument which is in a case this close where the strategies are so close how can one say there's a substantial probability that one strategy would work out better than the other so you have all these multiple grants i appreciate all the time go  the court jonathan feinberg on behalf of the defendant appellee may go over cardo i'd like to start by addressing the point that the government makes that judge boies essentially was imposing his preferred strategy on defense counsel in this case let's do that by addressing what was wrong with skill a strategy in other words what was wrong with arguing mere presence is not what you need for aiding abetting etc what kind of as this court held on direct appeal repeated presence is in and of itself enough to establish guilt so it's an incredibly risky strategy under the law is that it does your instructions well was the opening closing statements because the very first words out of government counsel's mouth in the opening i'm going to read if i may from the supplemental appendix of the government five page one this because the prosecutor starts by stating on october fourteenth of two thousand and eight this defendant domingo mercado was in a car while a conversation took place about delivering over two hundred grams of heroin later that same day this defend it was in a car a short time after that this defend it was in a car a different car paraphrased a bit nowhere does she say any time in the opening that this defendant took any affirmative conduct or engaged in any affirmative conduct which would show some kind of participation in the drug transaction  abundantly clear from the very beginning of the case that the government's theory is presence and it's repeated presence so much she couldn't urge that that he was present and that he did something when for all she knew there wasn't any evidence of that that would be a pretty weak way to if here's the thing i think we have the testimony from trial counsel at the hague vs portion of the case in which he acknowledges that of all the discovery information that was provided in this case not a that the government had a real problem in how they were going to address these phone calls and in fact i know to the mice in my response that the way egypt pulls the case is in this case responded to a question about where the phone was recovered i think came as a significant surprise t prosecutor in this case no one could put together where this one came from and i think that any skill prosecutor upon hearing this factual presentation there's no chance that a prosecutor is going to lead off in closing by saying this case is about the phone calls about that's a serious problem and you open yourself up to serious attack if you're counsel for the government so in that case your fallback position like a fallback position but your primary position is that it's the evidence of repeated presence it's not the phone calls at all and i don't think that was ever an there i mean you and you have that all the time almost every yeah and a follow up on the question there are out me in every case the defense lawyer spends a great deal of time cross examining the corroborating defendant codefendant about the plea agreement about the incentives to cooperation and the jury looks on with great patience and at the end of the day finds everything that the corroborate or says entirely believable but in every case starts it a legal that he was just a weak witness and he just you know and this really turned the tide because he really is that's prejudiced right but for this they were disbelieved that it was my father who was there all day i mean we can you can tell us the jury's going to disbelieve ricardo your question i think when into the prejudiced probably if i can bring it back to the reasonable this problem as to the strategy that's employed and i'm happy to address prejudice as well but with because first of all it's not admissible we can we can get into the identification testimony i think the court is probably receptive to my position on that based on the question that was asked if the evidence is not admissible then why let it in if it's hit the opinion from the boys can be fairly read to suggest that there really was no coherent strategy here because what we see are very stark inconsistency is in the way trial counsel handle things well but i do think and i too things can change in defense counsel is not one hundred percent sure which way this this train is is headed and got has to preserve all options and i just i think you know he testified credibly that he had a strategy and i don't know if narrows down with him at the only person who put mr mark out of at that location for lippincott is mr rodriguez news and there's a great reason for doing that because it narrows down the evidence rate support for the conclusion that he was repeatedly present now my rhetorical question is why would you do that if you are going to attack the evidence supporting repeated presence there's no reason to engage in that framework o also the one who is the best source if you will in his post arrest immediate statements supporting the theory of presence but we're presence there is i didn't do it but  is where he's got the advantages should have the latitude of saying i'm going to now go this direction and not muddy it up in the jury's eyes i see the point i would not characterize that is inconsistent and the reason is that when you look at the entire factual record no one anywhere was ever suggesting that mr ricardo engaged in any affirmative conduct related to the drug transaction no agents testified to that or gives new news certainly didn't testify to that and he and counsel knew he was not going to because he had the discovery which showed it and had he gone off script to use the word the trial counsel exact for those phone records and that's something that i get that i know that you think that there's some question about their reliability or their persuasiveness well phone records are there i'm going to end it i understand your point however i would suggest it's not just me making a factual jury type argument to this court judge the boys at  when you say that there was no other source of evidence of more than mere presence i'm simply pointing to the fact that the phone pattern phone call pattern itself could be characterized as evidence of more boyce's been on the bench for twenty five plus years said this is one of the closest cases i've seen in my tire career on the bench when you have a close case like this any conduct by counsel has to be looked at under the microscope more closely  boy said he should have done i he and assuming he could keep the dream his testimony out argued that regarding his had a motive to lie do not believe him believe part of him witnesses see a bad witness was his credibility such that really could be impugned such that he wouldn't have been bullied with respect to the presence of aside from his interest his bias and motifs the facts like his testimony there talking about or all of that right instead no he doesn't say that he says the guy said nothing he's right but he was there four times and these phone calls as soon as they call the calls were caught right in now we we've all seen convictions on less evidence than that so i'm wondering how we can come to the clues in that you want us to come to given that keeping in mind the difference if you will between the ability of defense counsel to say think about what you haven't heard you haven't heard anybody say that the affirmative didn't on the one hand and the ability of defen counsel to say the guy with the biggest motive to pin it on mr mercado when he had that chance affirmatively told you he was a lump on a log over and over and over and over again there's a big difference in persuasive argue to a jury in this case is look rodriguez jr he's got his interest he's in deep trouble he's got a motive to fabricate and yes he's not ascribing affirmative conduct to mr ricardo so he's giving the government as a lea thinks he can to help make the case that's what it would a trial attorney would say and you can't believe that you can't believe the little that he's given to the government because he's got these motives to lie and i you the argument becomes exceptionally difficult because the prosecutor was able to say in her closing argument when you assess the credibility of rodriguez nguyen's look at what he said to the ages he said before we cite this in our brief to that portion of the where the prosecutor made that argument he gave the prosecutor decisional ammunition to to employ that to amplify or to justify the credibility of rodriguez knew yes because of this decision to allow this testimony in and it looked like in return i haven't even addressed the question of identification testimony i will defer to the court questions on on that issue but assuming that the evidence was inadmissible when you don't object and you a you're giving the prosecutor this extra weapon which they should have in the first place to to ever have the credibility which you're going to have that in your closing as you told the jury you're going to europe that doesn't make any sense so the jury is less scratching their heads saying this lawyer told us this guy's got all these reasons to lie and now he's kind of accepting it as true that's not reasonable i don't understand what he's saying you guys were just plain guilty in the closing were there reasons to lie  declarant testifies and is subject to cross examination is that presuppose that it would have been ricardo nine years not dreamy would have been on the stand and not is that your contention with respect to his questioning is that if you read lopez the way they do every case can start with a witness taking the stand for the government that says so and so said this to me about the defendant being there and doing this that's really i think narrowest or the the best way that i can explain their position i don't view the rule wasn't as in visioning that at all i certainly don't view lopez as having authorized that by the introduction of the thread of evidence and there's no other case out there this is true t  the prior statement is allowed so there is only in vision the situation where is the declarant who is then testifying now it allows the prior statement to be brought in through any credible witness just like any hearsay statement hearsay as well just a couple other quick points what we saw this contrast between the opening of the closing their isikoff and what we saw is yola acting as an effective advocate he lays the groundwork for an attack on rodriguez n ado the this was a case of a close case and it was appropriate and a and they permissible strategy within this wide range of permissible advocacy for skillet to try this mere presence the fact have a point made about of the other offense the fact that an inference will support a verdict and deferential review doesn't mean he's doing the wrong strategy by taking his shot and he thought his best shot was mere presence and the point i want to make on that interesting thing though is measured from the record is the judge  all respect tremendously he says that the world twenty nine if i were a juror i would have acquitted so what does that tell you that's how you did a pretty good job he had one drove a month fortunately not a member of the jury that likelihood of a different result must be substantial not just conceivable and that's all we have here is a conceivable different result had gone after rodriguez eunice and not allowed to do nice testimony and attack them we can only guess what the jury had then set up we don't believe the mercado was there were they instead of said no way this guy's a fine when this we believe everything he just said and we don't think very well of the defense for attacking him on only part of  testimony this is a gas and that's not sufficient under the pressures could you also submit jury instructions yes we will thank you very much frank case as well are you take under