situation in which this issue unfolded was unusual to say the least as i indicated in my rethink this witness was a cooperating or had been a cooperating witness with the government he was the third i  exculpatory i mean you got a witness who had been cooperating with us now with as i don't remember i don't know those guys i don't recognize anyone in the courtroom i don't remember anything most jurors would probably grow an inference from math not that the defendants  it's wrong with the judge saying it out here well first let me answer your question but i'd like to address i don't know whether the transcript that the government submitted as a supplemental excerpt of record is properly before this court it's certainly not part of the record on appeal within the meaning of federal rules of poll procedure ten because it's a transcript from another case that was introduced here there's certainly the jury when they hear this man getting up on the stand i don't know he's down there he's involved in all of the transactions he gets that the only testifies but then when it comes to the brothers never heard of them don't know what you're talking about the case of correct and i think there we have to weigh two competing interests the is this if school the story relevant evidence which the defense is an idol to have the jury entertain and consider in its deliberation versus what's a do with a situation where it would just get up on the stand answers quite a few questions and then finds up as i'm not answering any further questions this is not a situation where it appears that there would have been some reasonable cross examination i mean if he hadn't refused to answer further questions and then simply got on the stand and said i don't know these brothers i've never seen them before i was never in mexico and then the government was able to get up and cross examine and say did you you did testify you had and here's what you said before but that couldn't occur because he wouldn't answer the questions very well that was the government's witness so all we have this government's direct here and i think that the government couldn't even have been declared a hostile witness from proceed with us examination on direct which the rules permit because he climbed up well the government the government did have a flare very early on in his testimony a hostile witness in proc to a point where he gentleman about here is the amendment rights i've talked to him about the possibility of being held in contempt and i don't i use his attorney don't think he has any thought the members rights and they said no no privilege but let me follow up on something to talk and brought out cases are not uncommon where somebody testifies on direct and then he simply refuses to answer questions on cross and the judge frights the witness's testimony that's usually where you get into well should be stricken the whole thing should be of what part of it in in this one it's a little different twist she starts testifying on direct and then he becomes evasive bunco operative and refuses to answer questions on direct once you use declared a hostile witness i'm wondering number one why i'm not aware of any cases that were cited in the briefs that are crackly analogous factually where the witness decides to clam up during the direct but i'm thinking why shouldn't we just apply the cases that are used where the witness uses to answer questions on cross and say in this case he refused to answer questions and was recently judged to be refusing and a everything he said was not collateral it went to the heart of things answering the further questions was necessary to allow for development of the testimony that there was refuses to answer i think that's a little different situation than we have here because in that case the district court judge felt well it with an entrapment defense questions concerning his s go directly to predisposition and under the basis for an entrapment defense here we don't have that we don't have the defendant up on the stand we have a witness we have a witness who giving testimony which at least the jury could if they find him to be credible it has to be deemed exculpatory because it's particularly expose the story to roberto my client because he's it wasn't considered by the district court and it certainly wasn't raised by defense counsel was this evidence has the potential to be genuinely exculpatory evidence for the reasons that i just explained if this man is deemed credible by the jury refused to testify well he certainly got i don't think there's anything really more for him to testify to then i was present at the scene down in mexico and i don't know these two gentlemen sitting right here they weren't there i don't jury by the district court's order striking the testimony i think that under the circumstances the district court should have done something other than just altogether striking the testimony the district court would have given the jury an instruction that this witness is refusing to answer further questions once he did refuse to answer further questions and that i the district court find he does not have a legal basis for doing so he doesn't have the fifth amendment privilege because the government has conferred immunity upon him so ok i'll keep an eye on them i don't think there's anything i can add to the am online book or discussion that the court hasn't already heard so the issue that i want to discuss briefly is the refusal to  properly consider jaime's requests for new counsel i think that there are three points to look at on that particular issue first the clear the court stated before the problem was sounded like somebody's mother never call you  never but it didn't sound like anything concrete well i think that i think that the reason that it is concrete is because the council confirmed that there was no communication between him and the client it seems to me at that point it was incumbent on the court to ask the no your honor but the lawyer also said mr this card doesn't communicate with me i think it was incumbent on the court to find out why that was it seems to me that the fact that if the attorney himself is admitting that the client isn't communicating with him that that's an indication that there may be a problem with a relationship that bears some further scrutiny by the court but it seems to me that on the facts of this case because the court was so sure this was a manipulation it didn't ask the additional questions to find out why mr karr wasn't communicating with his lawyer perhaps he didn't trust him perhaps there were prior consent prior communications that had broken down the relationship when he felt it wasn't in his interest maybe he thought the attorney was working a complicated case but the judge never asked those questions so we have a blank record where the client says he's not talking to me the attorney says the client's not talking to me there's clearly no communication going on but the court didn't make an effort to discover why there was no communication going on it's really not the court's in the  control is going to continue for twenty years under any circumstances and it seems to me that there's maybe something more going on that the court didn't bother to consider i just think that a few more questions by the court were no more required in order to them but you can see how the defendant from his point of view would want some more detailed explanation of what's going on or more and more time to consider it a lot of the junks material was only disclosed two days earlier as the government made the point that  through the evening recess and that's usually about it and i understand that but that wasn't explained to mr real space car either what we have is a record of a client saying my attorney doesn't communicate with me eternally saying my client doesn't communicate with me and the judge not investigating why that's the case i love the most the court has for the questions i'll save our remaining minutes for rebuttal thank you thank you that the testimony was damaging no one in that courtroom who thought that testimony most importantly the district judge thought that testimony was that's the tory it was obviously it was meant and what happened that really goes to the issue of the abuse of discretion ignore that testimony they were arguing it was damaging and so really the judge i think what what was he supposed to do every time you got a witness on the stand that spends a prosecutor you can't get a mistrial and so he was trying to fashion an intermediate  end of that but there was no indication at all i got up on the stand that day that something had occurred very shortly before that made him change his mind about wanting to testify so i agree with the court they would have been in the same position and if you were willing and that's just not what the record shows and i don't think that's that's why the trial judge decided to str talked about how he didn't understand english and that was the difficulty in which mr rove correctly responded that he focused so initially had gone over all the discovery and that they were ready for trial there just any need for any arrangement or advice much clearly the defendant had notification of his prior conviction and that we must as you know it seems unusual that you're asking for an admission for somebody who says they don't have notice but in fact this defendant went through all of the other posts tropper seedings the pre sentence report clearly indicated that there was going to be enhancement based on this part conviction at that point the defendant never objected never said there was any question that there had been a prior conviction so that seems to me that that's having a really is dispositive on that question i think with respect to jaime the scar the enhancement was based on the amount of drugs clearly there was a special verdict in the case that indicated it was more than five hundred grams of methamphetamine and more than  absolutely clear on what the amount of drugs were and it was really no dispute as to what the amount of drugs were so for all intents and purposes when the jury found them guilty of the question of more than five hundred grams and were going to kill them they had to be walker said if the guide lines were such a system then a jury determination would be necessary in the first of the indians i think was the stevens and then the second of the opinions i think it was prior really is no other reasonable i guess inference to be drawn from the trace conviction other than the fact that the amount of drugs involved in this conspiracy or the amount of drugs proven it's in the pot and proven by the chemist there just wasn't there's not not an checker they're the defendants the question before the court was what was the nature of his burglary prior i don't remember exactly what it was actually the court was looking for but the court ultimately concluded that there's only a limited limited factual basis that can be used to determine the nature of a prior conviction it can only be a judicial record it can't be hearsay doing what he's doing up on the stand is because he's been threatened by these two defendants and or some of their colleagues somehow from the sacramento county jail that's an inference that i suppose could just be drawn by jurors if there were no testimony or questions on the subject but really on this record the only reference to possible threats came from the leading questions that this crowd was permitted ron what happened here has tainted the jury and i think it's a fair inference of the articulation of the motion for this trial that it was complaining about is what i went on in my opening brief about look your honor the way you have handled this issue in front of this jury is to suggest to this jury that look the first two witnesses come on cooperate what this is and go with the government's program the third one is this witness comes along and doesn't go along with the government's program and everything that's gone or just have a trial without this witness which is what you would have done if the motion for mistrial i don't disagree with that however his testimony even if it was was in the record and it was stricken and i don't think that there's any reason to believe i don't know if i was the attorney and i wanted that in and i had requested for the district court to keep it in but the district court struck it i think it would be futile for me to ask to put