to stand it is that you have this second phase of the trial at which time defendant was not permitted to submit evidence that's correct now if an event organized that way from the beginning and everybody knew there were going to be two phases of argument but to present evidence and have organized the defense case in that fashion and got cut off by surprise that's correct and i think the court correctly identified what is really underlying that the difficulty here this  especially because i was present at those off the record discussions i do not have explicit recollection of whether or not the question of presenting evidence came up but what i would say their expectation of would be difficult for one to conclude that there's a violation of due process well i think i can answer and to ace first i think that regardless of what the evidence is the defendant would be entitled to and it might it might be difficult but the jury instructions gave them that i've seen and that's what he was asking for he wasn't asking them to find the defendant guilty of the mandatory minim minimums if the jury finds very large amounts and as i understood it the basic argument was whether they're going to be held responsible for the amount they got when they were arrested or for a larger amounts that they allegedly had promised to deliver which would have specifically asked for at the end of the closing argument now your honor i'm totally agree with you that might be a difficult decision for a jury to reach but it's just like in a death count against you the same all the time some possibilities but he hadn't really said exactly what should happen didn't make things a little confusing but it doesn't take away from the fundamental problem here which is that my client is serving a fifteen well what i would say is we're a different world and we have to do a little bit of time travel which is that i think that the remedy would be that he should get the same rights that he had at the time of trial which was that at to present evidence at the second things i said that they should have because i'm a cautious person and i didn't want to have this appeal i also said on the record that i thought that the trial court had the power to exclude the evidence but that i thought the this possible approach for appellate purposes was to let them put on their case and this way we don't have any issue on appeal your honor is i think the essence of my feel sanchez's appeal is that he was completely foreclosed jury the jury was instructed by the court i'm sensing entrapment most of us focus on what appears to be the practical problem can you say with confidence the defendant understood defense counsel understood in putting on the case that when he got to phase two of there was a phase two he would not be allowed to put on additional evidence you know that's a fair question obviously i can't say what was in the defense attorney's mind late night isn't the problem  to happen only when the rubber hits the road it turned out that the fans thought it was going to be allowed to present evidence in the court didn't think so and you didn't think so but you understood there was some concern working in the background of this maybe the record wasn't as clear as  you took what i thought was an intelligent position must be studied and let him do it only the court decided not to do that well if defendant in fact was reasonably of the belief that he was going to be allowed to present evidence and then suddenly the curtain comes down the judge says no it's not a problem if the if the defendant did reasonably believe that our position is that it wasn't reasonable it depends how you view it you could say it's the trial court's job to explain every detail of how the procedure is going to work to the defense or you can say that when there's a lot of discussions between the court the parties and they talk about what's going to happen they talk about instructions and they talk about argument to the jury and the defense never raises the issue of presenting evidence not structural because it did not prevent the defense from putting on a sense of entrapment defense they put it on their argument is in our church of record it goes on for several pages they cited evidence from the trial in support of it what the trial court did here was not completely exclude their sensing entrapment that's what the trial court did was taken off or put this into certain pieces of testimony that they wanted to offer in the sensing phase and the trial court listened to that in the trial court said i'm not going to allow this in for two reasons first of all i believe you should have offered it during the guilt phase second of all and in the trial court's words more importantly what the trial court said basically was this is not very probative  in europe the the purpose of bifurcating the trial in my view and i think it's on the record at some point is to make this process simpler and less confusing for the jury and i think it was mr gambari who actually said when we were talking about the bifurcated proceedings and this is was on the record that he didn't like the idea of the jury at the same time having the guilt or innocence verdict forms in front of them and then also having this set of forms with all these different drug amounts that and i think the exact word m separated from the government's point of view we didn't take a strong position one way or the other but we did feel that it would be a little clearer and a little easier rather than telling the jury you only look at these forms if you reach the following words and we had a lot of different i believe i believe it was the government that first suggested it either i'm not one hundred percent sure and i don't think there's a clear record on that question because again it may have even been trial court started sort of tossing out possibilities and options and we discussed as a defense and made it clear that they were opposed to having the jury make these determinations at all they felt that this was simply beyond the jury's province but the defense was clear i don't believe it was and then the question is if it's not structural of course the vast majority of constitutional everest even errors involving fundamental rights are not structural and are subject to harmless error review and then you have to look at the defendant's offer the things that they said they wanted to prove in the sense in today's and look at that in the context of the evidence and say would this have made any difference most of the things that they wanted to cover were cumulative they'd already been  covered in one form or another mr jupiter the other defense counsel actually said that when he started making the offer proof he said this is a lot of stuff that we have got over for they want to rehash a lot of things that wanted to cross examine witnesses who already time if you conclude that it was an error and you don't know that he would be saying out of the district court would be saying that if if the objection being made was to to mueller it's true that the trial courts can be the gatekeeper but in this case we've got what is allegedly a different phase a different spin on the evidence and i understand that the district court could make the judgment well it really wouldn't affect things very much and we have to decide where they can go to harm was there but there is some different  the ruling that he renders that the more important thing in his opinion was that the evidence was just not very progress that it just wasn't going to have that much to do with the jury's decision is going to take you over your time too but i do want you to focus on some of the next element if we decide there's a i agree on this one which is that the guilty verdict stand but we would effectively be left with no drug them out determinations and that would should then be done with it should be remanded to the district court the district court should convene a sentencing jury we should all talk very stands today there's no point in having them determine the guidelines amounts that is now back in the judge's problem so i think all we would need is a jury determination of the statutory rights which would because of the nature of sex ent