when he had purchased the pickup that he was arrested in and more importantly that he had given a false identity when he bought that pick up the government mentioned it's an opening it introduced evidence in his case in chief to try to establish this point and then  mentioned it multiple times in closing argument mr i allah in his defense attempted to rebut this theory and essentially to show that the government got this issue totally wrong that he was not the person who had bought the truck on that  and we're asking for a new trial for mistrial on that basis the first and most important piece of evidence that the district court excluded was the photograph it's in your forty seven that he attempted introduce to demonstrate that he had not been the person who purchased the vehicle when the that picture do you know if we know the took that do we know who took that picture we don't know anybody testify the people in the picture are x y or z well the defense investigator was prepared to testify that oh no that's not the question my question was did anybody identify who the people were in the picture by name i know these people and that's the person in the picture anybody say that it what way then can we say the judge abused his discretion in finding that there wasn't sufficient foundation for the picture  because pursuant to rule one of four that the district court required to consider all the surrounding evidence to determine if the picture is authentic if the picture is what it's purported to be and if we look to all this around the evidence in this case it was very clear that this was this was an authentic picture showing the gentleman and the two kids standing in front of the seven fifteen south all of the street home we have the gentleman and your forty seven clearly being the same gentleman in the photograph that was showed to the of the vehicle before trial we have both of these photos coming from the same facebook page we have both of these photos coming from the facebook page of his use of our own the the name that was given by the buyer of the vehicle  on the d m v liability transfer transfer form we have the text next to the picture which is not going to come in the trial we have the text next to the picture which seems to show the three people excited for a mexican national soccer game and with the mexican flag and wearing the girls wearing a mexico t shirt and so while we didn't have anyone specifically testify that they took the photo and put the photo facebook if you look at the surrounding circumstances for the photo and where it came from it indicates very strongly that this was an authentic photo and this was something that mr al a should have been allowed to introduce to rebut the government's claim that he lied about his identity photograph of the gentleman sitting there and it's the same gentleman that's in front of in front of the house so we have the seller identifying the gentleman he are sixty six with high probability is a guy who actually bought the vehicle from him in late november of two thousand fifteen and the reason why it's important that it was important have your forty seven come in is because the gentleman the same gentleman again exhibit a who's in your forty seven is standing in front of the house at seven fifteen south  which is the address that was put on the liability release form so without without your forty seven all we have is a gentleman identified by the seller of the vehicle as a person who looks like the person who had bought the vehicle we have information showing heard evidence which if they believe the seller they knew that it was someone else who was the direct purchaser and that your client then would have been the purchaser personally from this others write whatever his name was you had records showing that a real hey susan over on existed and actually live or was registered at that address so i'm not sure what more in terms of making the argument that you laid out as the key the keystone of the defense i'm not sure what more you needed well government government certainly did not think as your honor is implying that that by introducing this photo that suddenly the argument that mr i'll did not lie about his identity was foreclosed the government continued to argue that in closing the government thought it had that argument and the reason why forty seven was important is because it totally cut the legs out of the government's argument without without this photo any r forty seven the government still had a valid viable argument that well you also are contested second evidence proving right the statement of the female at the seven fifteen south all street address you are correct that there was evidence from public records that  her own had lived at seven fifteen south all but that the better evidence as to that point is the woman at the house saying yes and yes and the statement that she gave was never offered for it's true that wasn't offered to show that he didn't live there anymore he could've still lived there don't accept the truth of what she said because she knew the name investigator went to the door and said look at her he says no her own and she said he doesn't live here anymore so she knew who he was and that isn't that just like saying he had lived here one time but he doesn't live here anymore and that's offered to show that he had lived there before i don't think so your honor i think that's where the governments are then but i think that there are other alternative interpretations of that and uses of that that was the other alternative what's the other  maybe maybe he still is well it still goes to prove that he had a connection that's the point of the evidence that that's the truth of what's asserted well that he either lived there or had lived there a while i think the truth of what's a sort is what she said though he doesn't just says no that's different from saying he doesn't live here anymore that just to say no doesn't imply that he lived there previously so you have to you know go through truth well i think you take the whole statement a d in considering this issue i think that the truth of the matter of the statement is that he didn't live there anymore and if we take if we assume that that statement is not true is the statement still relevant it is because the woman at the house i knew his was not our own and there was a connection between him and that house and that that's the crucial connection i know that there was evidence in the records or dancing around these issues but but the government are going to close i think three  that he lied when he bought the truck that was an important consideration for the jury and if a forty seven would have come in that argument would have been completely foreclosed but let me ask you one more question before you sit on about harmless error so let's assume that you did in fact get all this evidence in it still seems to me all you would have shown is that your client purchased the truck from his over own rather than from the to the immediate seller soap still was caught by himself in a truck with all these drugs hidden in a very elaborate way in the engine block i don't know i just don't see what yeah yeah you would have rebutted this argument that the government was making but you'd still have to contend with pretty remain viable by the time of closing that when he bought the truck he lied about who he was i mean if you're going to smuggle drugs and you're going to buy a pickup truck to do it but he registered the thing in his name he also i mean i that's what i don't ok fine you know you've re claim that he gave a false name to the immediate seller of the vehicle but he then wasn't trying to hide his identity from d m v he registered the truck in his own name well he did it before smuggling the drugs so you know there we are you i mean it cuts both ways but  i mean that is one of the first thing the government said in opening was that this case started a few weeks before when he gave a false statement and that was a theme that resonated all the way through trial they spent a lot of time a trial eliciting this evidence from castillo and in arguing about it in closing and closing they said look look to the circumstances of the purchase of the vehicle so the government would let it go they thought it was important enough issue to keep raising and i just think that to a jury with liberal fishy if someone bought a truck gave a false identity and it was caught with drugs  krishnamurthy if the united states so let me ask you this i guess i'm inclined to agree with your opponent that at least the photo of the man standing from the house should have come in and i guess i don't see trying to figure out what your legal position is sort of you saying that every time a photo is admitted in evidence you have to have basically either the person who took it provide foundation or somebody who was present when the photo was taken provide foundation that's not quite it her or her oh my no one there's typically two ways in which photographs come and the first is when a witness with with knowledge of the scene testifies it's a fair and accurate depiction that could be a photo that could be someone that took the photograph something that was there when the photograph was taken or someone that has seen  many times that he can testify that struck you well know that if the person wasn't there when the picture was taken they're not going to be able to verify for example in this case that those people in fact were standing in front of the house when the picture was taken this is true that could have been doctored right i thought that was your is that what you're trying to argue to us i guess is that the reason there was no adequate foundations because there was some possibility that the photo was doctored that there was the people were superimposed against the background of the house and that they really weren't in fact standing there to take your first question to take the first question first that third circumstance people that are familiar with the scene usually comes into play when there is a picture of a building for example something that is a static image that doesn't change that doesn't depend here as it does with a person connected to a place the idea the idea of alteration certainly is that why you wanted to keep it out because you thought it the photo had been doctored that is that is certainly one that is certainly one concern there is in this case there is no evidence of who the person the photograph was ok so if that's your position then you are saying that every time a photo is admitted someone who either was present when the photo was taken or the photographer him or herself must testify to lay the foundation that's your position apparently i don't think that's actually somebody who didn't take the picture was impressive but could have said i know the person in the picture and that whatever the guy's name is that would have been sufficient but that would have been circumstantial evidence leading to authenticity no state your argument if i understand your argument the problem with the main problem with the picture is no one ever said the person in the picture is whatever this case is whatever is a list isn't that the basic problem that is that is the basic problem but for authenticity but none of that was present there whether the person in the picture was the same person in the other section that that was a question for the jury to decide right they don't look terribly alike in my mind but would have to be authentic for this photo because it was offered for the purpose of showing the person in the photograph stood in front of that address right was that connection between person place i thought that was your problem was that supposedly the people who are in that picture whoever they are  they might not really have been standing in front of that particular house when the photo was taken that's correct my my point about the circumstantial evidence is that in some cases a photograph could be authenticated by circumstantial evidence so if there was no doubt who the there was some relationship and you can draw the further inference that that well the relationship with a live there one thing right correct so what's important what's important from your perspective in  challenging the admission is that no one testified that whenever this time period is you know they were talking about that no one testified he or she saw this guy standing in front of the building during that time period is that one of the things you think is important for the foundation that is correct and there's government wanted the jury to believe that the government wanted the jury to think that he bought the truck he lied about his identity they went to great efforts to keep our forty seven out if it wasn't for the why not let it in they argue is proved or supported by that exhibit is already there there already is evidence in the record on those points to support your position minus one issue and this is the most important issue and this is why this is it was crucial that the guy end exhibit a was the guy living in seven fifteen south all we have his own self that's over here we have the guy day looks like the guy who bought the truck but we don't have the link up and the link up is what would have completely cut the legs out of the government's argument that this trial started this crime a few weeks before trial when he bought the truck and he went to face knowledge of mexico so defense counsel was honest with the jury and posited a couple of different possibilities as to how the drugs got in there what you wasn't sure he was honest with the jury about that but he did set forth a couple of viable possibilities as to how this the person who on the truck didn't get it out of impound it was often off that's how the truck was originally purchased and so the theory was and it makes it makes sense that if you have a truck and it's impounded and it's got drugs in it maybe you don't want to go to the impound yard and say hey that's my truck and get it and so that out that was one of the one of the theories that was forwarded by defense counsel ok thank you very much thanks very much the case just argued will be