next case on the calendar is united states good morning ma'am please the court my name is harry sand and i'm a parker patterson belknap weapon tyler i'm handling this case pursuant to an appointment under the c j my client mr met his conviction should be reversed and the case remanded for a new trial and i'd like to focus in my time on two issues raised in our brief first the district court's ex parte meeting with a number of jurors and second an error in the jury instructions relating to section thirteen twenty five see the marriage fraud statute my colleague will argue the point relating to whether the jury instruction but when there's a reason to distrust the defendant which we also have made by pollution in our brief with respect to the ex parte meeting in the middle of my client's trial jurors raised a concern about something that my client had done in the parking lot it's not exactly clear what happened the district court decided to have an ex parte meeting with the jurors this court explained in collins that ex parte communications are pregnant with possibilities for error and what happened after that ex parte meeting where during that ex parte meeting with such an error the trial judge told these jurors that my client had acted inappropriately that he had acted in a disturbing way he suggested that they have a court security officer therefore suggesting that they needed physical protection from my client the trial judge did not tell the defense lawyers that he was having this meeting until after it happened during that meeting and afterwards the trial judge never tr figure out if my client actually did something wrong nor did he ever ask the jurors if they could be fair despite their belief essentially that my client was stalking them so i think the district court didn't based on the nature of the case and that this came down to in large part a credibility determination by the jury did they believe the testimony of my client and issue johnson who denied that either of their marriages were engaged in for fraudulent purposes or did the jury accept the cooperators testimony of the cooperator here had flawed testimony had a history of substance abuse in a number of statements and recantations in restatements this was not an overwhelming case in particular with regard to my client where much of the evidence of my client's intent with respect to his marriage to mary was really circumstantial evidence about his role in the issues marriage  if the inferences are drawn for the government there are still in our view and we've argued i don't want to address it today but we've argued that the evidence may not even have been sufficient because the evidence was equally consistent with theories of guilt or innocence so the idea that my clients is well i got my green card by marrying mary and the government says aha this is evidence of intent to commit marriage fraud no it's actually a description of how he got his green card by virtue of his indicates that he did eventually one i think can infer perhaps that he did although at the time of the colloquy with the court one of the defense counsel said this is on appendix seven eighty two we don't know what the testimony the judge hasn't told us everything they said so at the time right in the moment they really didn't know what had happened in the ex parte meeting and the problem here is that when the jury has to pass on my client's credibility and they're both that they need essentially to fear and be protected from my client by court security officers and then told and i'll let mr kulpa dresses but also told that there's a motive to lie because their defense in this case at some point the ability to have a fair trial is lost collins talks about how even seemingly innocuous ex parte communications between the court in the jury can amount to reversible error and given that so much of this came down to his credibility a personal assessment by the district court you know that's disturbing i've been doing this for years and years and once in a while you get somebody that acts inappropriate like that the ability to have a fair trial was lost and i would also submit that if the court had followed the collins procedures they could have found that what happened there could have been cautionary statements no no no they were hold back they didn't want to you know intimidate you they're just trying to get home just and i agree better not to send inappropriate that are not just disturbing but this case the conversation otherwise bears some similarity to gagne and right there is an ex party proceeding that was defense lawyer there but the  jurors want to know something interactions are going to happen between jurors and the trial court in the course of a trial and if there's a transcript available there was not a request later in the proceeding judge we'd like to curative instruction we'd like you to make sure there's no misunderstanding about this there was no request of that story and what are we to make of that well i think it's very hard to undo what's been done through a curative instruction here the judge particular when you read it on the transcript was so forceful he even tells the lawyers in essence tell your clients to stay the heck away from the jurors one can imagine how this message was conveyed the tone of course is missing from the transcript how would it help the defendant a day or two later to have gone and say oh remember when i told you that they were disturbing and now c s o's walk you out to your car every night you actually shouldn't hold that against the defendants you should try to be fair the times  the judge what time of day to the judge so this is late in the day it appears because it says on page eighty seven sixty nine jurors were excused that four thirty six and then there's a discussion in the jury room and it seems to have happened the second day i believe it's the second day of trial here us and the discussion is held in the jury room and then later on it seems as if when the judge comes back out to have some colloquy with counsel at the end of the day there's a rule twenty nine motion that's made this is the same day the judge at that point disclose that he had the conversation but this is the point where one of the defense counsel mister kelly says now i have five journeys they're deciding the case they're nervous about had two defendants are following them another one says we don't know what the testimony was the judge hasn't told us everything they and at that point rather than the district court saying well maybe you're right maybe there's an issue here instead the judge basically just says looking at page five seven eighty three says i'm just saying i want to make the jury feel comfortable maybe they're a little nervous but he never offers to do anything or backtracks on his conclusion that in fact my client was doing something wrong which we don't somebody that acts inappropriate like that so when i read i don't know why they're doing that i take it as a rhetorical question of how could they possibly be doing that they shouldn't be doing that but i can see that i'm reading in to that sentence based on the following sentence and the prior sentence where the says it's disturbing and that he's going to get c s o's this court them out in the time i have left i just want to turn briefly to the jury instruction issue the fifth circuit has held that there is a circuit split on the question of whether or centrally how jurors should be instructed on mixed motive cases the my client testified he said sure i was in substances that i was happy that i could get my the district court this has to be a fraudulent marriage done aren't those things sufficient to address the overall concern raising well i think they do address the concern of whether the client acted  just looking at the language and eleven no one is to establish this element the government's prove that the defendant acted intentionally and purposefully with the intent to do something the law forbids but i think the way the jury frames the question of what the law forbids will necessarily be influenced by the prior instruction about whether or not and intend to establish a life together is only a factor among others or whether if such an intent exists whether that's  so when we say the defendant should have known that their conduct was on lawful i think it's still framed by reference to the language that the ninth circuit in the first circuit in the be a has as have all stated should be used here  the this was a preserve error and i think the ninth circuit has it right when they say that marriages occur for many different reasons and that there should be at least some instruction to the jury along the lines the ninth circuit has transcript the judge came out he said i'm not speaking for baden for what he said in a scratch or a transcript but the perspective that he gave us was that there was a conversation that he had he certainly did not tell defense counsel that he said that the conversation was one in which he described my client and mr mehta's behavior is disturbing he did not tell the defense counsel that he didn't know why they were doing it in any kind of you know implicit way that was maybe negative he said he had a conversation he said that he advised that they would have security and we went on with the trial of course reading everything and reading transcripts after the fact is more alarming to me now standing here than it was in the minute and a half the judge mcevoy addressed and it was something that was based on the judge is not giving any indication as to the nature of what the conversation was or what he said if he came out and if judge mcevoy said to us that i told the jurors that your client's behavior was disturbing i would have asked for a sidebar and asked for a mistrial your honor we had no indication that that was some context of the conversation your honor i believe that the issue is is unique to me is a poca is one as to the question of the validity of our marriage after trial new evidence was disclosed by the assistant u s attorney who prosecuted the case he provided to us in december of two thousand and fifteen indications that they'd received from the american consulate in japan in excuse me in india indicating that the decree of divorce that was relied on by the government as evidence in this case was actually fraudulent the factor that is important in that is that my client who is an american citizen is married to mr mehta who allegedly previously been married to the the critical way to ms med is representation to her defense i would propose to the court that the first element of a marriage i know the evidence isn't that the record doesn't contain and any evidence that she was pain but let's assume  someone in her position was painted and clearly her intent was to help someone get around immigration lost through a fraudulent marriage and it turns out that that the marriage is a this court held that the validity of a marriage is a mature material to the prosecution for a crime where marriage is a issue and that wasn't a marriage fraud case in particular but it was an immigration case was a case where there was an allegation of  falsely filing immigration paperwork or parties alleged to be married and then they were prosecuted for lying on that paperwork because the marriage was deemed to be a sham marriage and that his second circuit reversed it and that reversed and dismissed the indictment on the grounds that although in that case the parties were married lawfully it was not a lie to say that they were married on the immigration paperwork it may have been a sham marriage may have been a violation of the charges here but they were not specific exception for bigamy and the eastern district of new york is actually recognize that as well so federal courts recognize it also where you have a bigamous marriage in every case where there was a legitimate original marriage without a divorce and then a sham marriage those folks cannot be prosecuted for marriage from on your theory yes and the reasoning not make any sense but it does because there are other  crimes that would be a political in that situation the simple analogy is if someone is speeding they're not guilty of petty larceny if someone was on marriage paperwork and they say i'm in a marriage and they're not then it's a not be a member of the conspiracy for purposes of brewing she clearly along for the ride after the fact the evidence that is newly produced suggests that all along her husband and the other defendant were married they never divorced and they produced all of the documents of the use to allege that as evidence as evidence of their ability to marry my client i think if this case was retried i could present these arguments to a jury and in combination with the lack of proof that she got any material benefit the evidence that she did i would probably put her on the stand and ask her to testify and i would hope that she would testify that she intended to marry him for legitimate reasons she's since learned that she was to focus on the the the jury charge issue relating to defendants testifying in united states versus games this court denounced any instruction that tells a jury that a testifying defendant's interest in the outcome of the case creates a motive to testify falsely that denunciation was repeated the following year and u s versus brutus five years later in u s versus maza admitted li an unpublished decision the court nonetheless found that the fact that the district court gave this clearly erroneous instruction five years after a decision in bruce's highly troubling this instruction undermines the presumption of innocence which is not only one of the most fundamental principles of our criminal justice system but also one of the principles most widely known and understood by it is plainer and the government can see that it's an error that is plain and i think the passage i just just read your honor also gets me to the fourth element with that which is the the fairness integrity of the proceedings you're undermining the presumption of innocence i think the crux of the matter is the third element of the plain error which is the prejudice your honor at the affecting substantial rights this is a case where this was a he said she said case johnson took the stand testified saying that brandon johnson who said that this was a phony marriage was not testifying truthfully brandon johnson and i know the government that their case was airtight and they tend to say that in most cases but brandon johnson was not someone whose testimony is above reproach brandon johnson admitted that before the immigration inspectors  knocked on the door that morning he had been up all night drinking and smoking marijuana he was distraught over the death of his grandfather with whom he was very close he although he admitted that day that purported to admit that there was that the marriage was was fraudulent he retracted that in two different statements one of which was typed and he i think believe he tried to say in cross examination well that was done by isa but then there was another one in his own handwriting which he admitted so this is not an open and shut case this is a case where putting a thumb on the scale and saying to the jury in effect well we all know that defendants have a have a reason to lie and criminal cases was was was severely erroneous and prejudicial there's some other aspects of the case that i want to point out that the brandon said well you should never lived in my apartment well branden's own the work friend testified as a as a defense witness and said that yes she was the one who was sleeping on the couch those were her clothes that were seen by the immigration officer but she said that if she was also living there and staying in the bedroom not every day of the week but but she was also living there living there as well so this is not a case where i think you can say well let's let's just attribute this to you know a bad jury instruction if there are if you on the on the sufficiency i mean this really goes to the house how strong the evidence is if you step back and look at the big picture you have the two coming with their son tourist visas and paint they appear to be coming in as a family and living together as a family the husband and wife working at a mini mart together and then the each wind up in somewhat unlikely marriages i mean it certainly feels like marriage fraud if the government makes those arguments they have a case these are private matters they're difficult to unpack  you're talking about what was described as an arranged marriage by both of the defendants who testified that they were sort of free that johnson and i fell in love and got married for that reason for what reason because they fell in love yes that's what they testified and i don't think it was appropriate for the district judge to say well this one over here and the other defendants who have reason to lie i don't think that it was appropriate to put a thumb on the scale  some there are couples especially when they're involved in co parenting where they are still have to do things together and that and in this case there was a common apartment raising that the child may all be true but  that this was the government has to prove that this was a fraudulent marriage and there has to be evil intent intent to break from ma and the jury convicts i just go back to my original point i think you've got   he said she said where the he in this case is someone who like i said was drink up all night drinking retracted his his confession twice and so there's a real issue there on the he said she transcript or without i had to defer to mr show anger on that issue i do believe from what i recall that they didn't get the benefit of having that transcript until some time after the trial would not was not going to argue that point one or two daily copy i gather i can't answer that one way or the other maybe maybe he can i do want to just to quickly state i wasn't going to argue this point that yes in my client's case the trial counsel did make a mistrial motion so i don't think playing our review applies to my client at least because because of that motion being made and even also even though she was not it was after the rule twenty nine motion as i understand it as i recall it was it was not in real time when they were discussing this in court i think the rule twenty nine motion was made and then he had a chance to reflect on it i think because he was thinking well this wasn't my client who was one of these two people who the judge made the despaired the two diff other defendants who the judge made the disparaging remarks about but i think he thought well this is this is prejudicial spill r towards my client who after all is accused of being in league with at least one of the other two defendants and she's part of this of these inappropriate remarks if i could jump on the very i see that my just very quickly on the on the marriage fraud statutory issue which was properly preserved mr stanhope made a number of the points that i would have made i just want to comment on one thing that the government says that you know well we shouldn't be adding additional concepts or language beyond you know what the statute says which is you know for the purpose of evading immigration laws but courts do this all the time to prevent statutes from being construed in a way that are that you have a statute that says you know on a services what are honest services and what the supreme court did with that is they said will we can supply some content there rather than strike the statute will will say on a services applies to bribe and kickback which is what they did which had been based on years of interpretation and i think this this phrase did not intend to form a life with her spouse did not spring out of the fin error it was it's a phrase that goes back to the supreme court's decision and that it's not adding an element also testified that yes it was that was a benefit to know that i could resolve my immigration status but that alone should make marriage f me please court t v could hamper the united states addressing first a factual question the moving on to the law with respect to the transcript issue i think the record is silent on whether there was any ordering of the transcript this happened as i understand  chronology at the end of the day on thursday i don't think the court sat on friday or closings thereafter on monday with further or to the defendants closed on tuesday and then the jury's verdict was at tuesday so but critically the judge started off his conversation with counsel by alerting them to the fact that a stenographer had been present and there's a record of everything they said and that i said that it a seven seven one but yet over the course of the week and the other two days of the trial and indeed in the months after the trial it does not appear that any transcript was ordered and i think that's why we're here on plane air review defense counsel could have acted on this ex parte conference defense counsel did not and in fact interesting only the trial court and disclose that he can't use words like disturbing and inappropriate sure and if he had not i there probably would have been a different kind of response if that that's possible but i think it's incumbent upon to avoid the kind of situation where in here it's incumbent upon defense counsel when i learned to a conversation of this ilk to take it upon themselves to to to to check that's it's incumbent on the district court to how we're not present what happened afraid of these brown skinned people and that is a defense counsel's worst nightmare that that will drive the conviction and on top of that the judge gave an instruction on motive to fall so far that this court had has been on and big you was in a holding that  it erodes the presumption of innocence could not be clearer and so and what you have to help me understand is why that combination of circumstances does not impair the public's confidence in these proceedings sure because it was an injection and as the defense conceded we're here i'm  that the defendants have to convince this court show a reasonable probability of a different outcome my first response to your suggestion your honor is that if you look at the court's comments they are ambiguous the defendants are suggesting they have the worst case scenario associated with them and the government has proffered given has proffered in its brief why there's another take on those comments when when the judge said that's disturbing there have been at least whether the jurors could be fair and rendering a verdict after this whole discussion i think that could have been an option but again defense counsel would have the option well we have at the end of the with the defense counsel in the in chambers when defense counsel were there we have the court's suggestion that and this is at page seventy one and there's nothing in what she my clerk told me or what i heard from the jurors that would make me think they made up their minds about guilt or innocence and that's the page seven hundred one well he was there he was look nobody can look at the comments that they made and i think i think this supports the conclusion that he draws a seventy one if you look at the comments that the jurors made they're not particularly they're they're fairly innocuous i would suggest and in particular if you look at page seven seventy of the record one of one of the jurors says it's a little uncomfortable another juror refers to lollygag and another juror refers to lingering and star don't think these jurors were suggesting these worst case of people that make me nervous well i don't look at me makes me well you can say and this was something the court you know taking it outside of the protection that reinforces the notion that you have some justification for being suspicious of these grounds skin people well and again i think this is a tricky situation for a trial court and i think the court recognized that when you have a juror who approaches a trial court enunciates concerns about a defendant the court in gag knows quite clear it could be counterproductive the court said to have the defendant present at the ex parte meeting and that's the tricky situation on suggest counterproductive with alerting counsel that might clark got this report from some what should i do this is what i propose to do and give counsel a chance to be heard on a chair and then you could discuss whether the defendants can be there or not better but at least there's an opportunity to discuss counsel could then say you know on a shoot inquire as to whether the ask one of the defense counsel to come back you know we're in the context of planar obvious error and i would suggest that the defendants have not shown a real probability of different outcome for a couple reasons but even before i get to that i want to emphasize this they must show plainer obvious error i would suggest that the courts comments are ambiguous they don't necessarily be speak prejudice i've made that argument in my in my brief i tried to read it read it here i think this is a court trying to do to deal with the judge or as concerns in the best way possible the judge the defendants have suggested the worst case scenario with respect to those comments the government has proffered an alternative explanation but we have to the defendants have to show those comments were so obviously prejudicial that's what i would  suggest if you look at the page seven sixty nine seven seventy two points first is true that the court when initially confronted with  lollygagging he says that's disturbing but then about ten lines later actually four lines later he says i don't know what's in there referring to the defendant and i think he's about to finish the sentence a i don't know what's in their minds and then a couple  hours later and this is on page seventy seven he says i don't know why they are doing that i would suggest that that was maybe an in our four way of acceptance is what's troubling i've been doing this for years and years and once in awhile you get somebody that you know i guess i don't think it's obvious i think when he says in the abstract well keep what he says is everyone so you get somebody that acts like that and so it's at that point it's sort of third party objective that is the defendants must show a reasonable probability of different outcome there are several features of the record that i think show the defendants have failed to do that number one as as i've already discussed we  i think your comments have a couple of minimizing the strength of the government's case but the fact that the government has a strong case  the jurors assess the situation and said i don't think we have bias here that's number one but number two if you look at the instructions the court was quite quite strong in its admonitions to the jury both before and after at at the record  in the court before any of this unfolds preliminary struction says nothing that i do or say during the course of the trials and intended to indicate or should be taken by you as indicating what your verdict should be that's a matter entirely up to you that the court reiterate sat after after the case before of closing arguments judge says anything you may have seen or heard outside the courtroom is not evidence must be disregarded  before the case begins the court says i'm sorry final instructions to be violation of your sworn duty as judge of the facts to base a verdict on anything but the evidence in this case and then again it ten eighty seven anything you may have seen or heard outside the courtroom is not evidence and must be entirely read to see if disregarded you put those instructions which this court must infer that the jurors it here to absent any evidence to the contrary put those instructions together with what i would say is was essentially a no bias finding on the part of the court at the end of the colloquy coupled with the strength of the evidence and i think what you have here is a situation where the defendants have not met the third prong of  examination put all that together and i think we have a cleansing of anything that emanated from those ambiguous republican remarks of the judge and they're not just the government stand and testified i would suggest this is really there's there's there was overwhelming evidence she was part and parcel of the cash for married scheme drummed up with her and johnson and several features of the government's case corroborated that cooperating cooperating witnesses testimony most importantly we have officer savory's account of what happened when each it was arrested were not arrested but cited for the traffic accident and the extremely suspicious circumstances that unfolded thereafter when she initially gave the dutch village address and the next day said no she initially said i'm not my name is by my maiden name then she says you know i'm not going to give you my last name and finally when i asked her husband's name she refuses and says well that would get him in trouble we also had agent lance testimony of brandon johnson's contemporaneous confession that he married for immigration purposes and then of course we have issues law on the us c i s forms put that together with her testimony which is sort of the other piece of the puzzle here when you back out and you look at the whole record her testimony essentially boiled down to my immigration lawyer screwed up that's essentially what it amounted to yes i told him that i was not residing here but if parents he didn't listen and i didn't look at the forms carefully all that together i think but this is this case in the maza category in terms of they have not shown a reasonable probability of a different verdict on these  certainly look at in plain era contacts and that makes perfect sense i mean to the extent that you're trying to assess well did that instruction have any impact here and if the government's case is overwhelming and this court in maza went through the counts very carefully a fix here with respect to a vacuum on the record is if you look at turning to the ex parte conference if you look at the age seven ty two of the transcript here at the very end of the entire colloquy we have defense counsel for guar of maida telling the court well first the court first he says well maybe i want to have my my client apologize on the stand and do you think i could do that in the courts as well i don't i don't know and then this is and i think i think it is important the next next sentence he says well we can deal with it let me talk to my clients and find out what's going on here so there was a suggestion at the end of the entire colloquy that they're going to figure out what went on folded and maybe deal with it that way so i think that's part of the reason we have the blankness that we have here with respect to the record  huard year was on i believe on tuesday there was testimony on wednesday and thursday they took friday off i think closing and defense case was on thursday i think closings instructions were on monday and then final closing arguments testified that he should told him no we had that ginned up that divorce decree was created by somebody in india so this is not new information i think that covers  point i wanted to cover i don't want to take up the court's time unless of course he has any further questions we're in seventy two or seventy one so your point is basically just that there was discussion of this trial the court offered to you could have this price and jurors had indicated to her that led to this exchange and that's counsel just in it yet effort to supplement their record yes absolutely but most critically when the judge started his in chambers conference with defense counsel he said i had a stenographer there and apparently the there with the defense counsel sat on their hands thereafter and that that i think really leaves and then and then and in fact they all fell post many months after the jury verdict here there's no indication that this district was ordered and or that they focused in on this i think everybody was of the of the mindset well you know this was thank you your honor i want to turn to the subject of prejudice this was not an obvious merit for a case as to my client and mary a poca in the immigration authorities had already conditionally given him a green card after going through the initial stages of the application process and pages forty and forty one of our brief when he was there was a conditional approval after an interview with the immigration the johnson marriage it was not the evidence about my client having entered into a fraudulent marriage and we were count that evidence on pages forty and forty one of our brief that the evidence that was reviewed by the district court when it denied the ru was fraudulent or that mary a poca said welcome to the family when johnson married as if that was somehow a covert signal that her own marriage was fraudulent it's a lot of these very determined if pieces of evidence that are sort of stacked one on top of the other and it isn't just a matter of when the evidence is drawn in the government's favor you draw inferences in the government's favor you should therefore conclude that there was no  no prejudice here it's that the evidence was incredibly equivocal and the inferences you can draw were equally consistent with guilt or innocence and so again as collins said even seemingly innocuous ex parte communications can still amount to unfairness and here should we look at those cumulatively i think the court should look at those cumulatively because they play into each other both of them essentially are ways in undermining the defendant's testimony and there was no reason for  defense counsel to go back and order that transcript when the court says i told you everything i'm sorry with the court says on page seventy two of the transcript which government counsel was citing the very bottom of my client's tr counsel says we don't know what the testimony the judge hasn't told us everything they said referring to the jurors in the ex parte meeting and the court since i told you everything that i thought was having to do with the issue of what i had to do to make them feel comfortable sure it was on page seventy two a few minutes after the ex parte conference so the district judge is actively encouraging counsel don't worry about this based on an incorrect i'm not ascribing intent but an incorrect description by the district judge it's understandable in those circumstances that the lawyers wouldn't have rushed out to get the conference because the district court told them that he had already disclosed everything and in fact he had he also he also told them you can have we can have my assistant  testify tell us what the jurors told her defense counsel clearly did not rush to make to get a full record on this i would i have to concede that that is also part of the record thank you with respect to the realization that the divorce decree that i now i'm relying on is new evidence to warrant a new trial was not new evidence there is an enormous enormous void between a cooperating witness who is a drug addict and alcoholic saying oh yeah they made that up somewhere i heard and a federal prosecutor after the fact sending me correspondence that absolutely confirms that that divorce decree is not something that was procured legitimately that the government relied on the fact that divorce was real as evidence that there was some overarching scheme here it didn't seem to make sense to the government that two indian nationals would marry in india divorce and then shortly thereafter moved to united states and live as a family the knowledge that that divorce decree was absolutely would certainly change how this case would be defended in a material way if we knew that this entire trial would be would be constructed in a different way you've got one earlier in the trial you've got the judge making disparaging remarks about a couple of defendants i think judge parker you said that that undermines the presumption of innocence well on the jury instruction issue that i've been arguing it's the exact same thing so i think this is a case where issues really do the prejudice arguments on the opposing counsel said that i made reference to some of the cases in terms of prejudice on the argument that i was focused on the in the brutus case where the court did not overturn the conviction the defendant had had been caught at the airport with drugs confessed right then and there and judge glasser i think said at sentencing it was the most incredible perjury that's you know that's an open and shut case or even in the masa case which there was discussion where some counts were overturned and others were not the ones that were not overturned were document cases i think one of them was was an obstruction case where clearly subpoenaed documents were not turned over it didn't really turn on that that defendant's testimony and these these were not turned over and the other one had to do with asbestos false filings that again we're documenting tense of this this as much as one emphasizes the government's case we she still was testifying against someone who had serious problems with his credibility with the the over night drinking session and the confession and the two retractions and otherwise i rely on my brief to respond to some of the other points that were made and i thank the