hand he said and will be used to borrow his car and that he believes she may have been responsible for putting drugs in a spare tire without his knowledge on the other hand he later said that he agreed to of a recording and misters and a hoss's incriminating statements were sparse at best to compensate for the shaky statements the government chose to put on testimony and to argue at closing that the presence of a unknowing mule phrase for someone who's models drugs and country so it seems to me that that helps you rather than hurt you since there's no question that he brought where he was going and what he did with the with the what he was smuggling yes iraq i think we need to separate the discussion that happened during the eliminate proceedings and then the evidence that came out in trial so during the in my many proceedings the defense indicated that they wanted to be able to discuss the problems of a tractor to show a house was an unknown courier like your honor suggested in a district court said if you're going to put on that testimony then we're going to allow the government to come back and say that we see these trackers a prosecutor then argued tracking drugs a part and parcel not of an unknowing courier but of unknowing courier enough on page three hundred and fifty one dollars of the record where the prosecutor makes the closing argument saying that the presence of a tracker is not only what happened in this case but it's one hundred percent consistent with how you would expect dope to move across the country and this is in the context of the prosecutor making a broader argument why it doesn't make sense to use an unknowing courier that you in fact use knowing couriers and even with knowing couriers you've put a tracker into the drug loads that you can trust but verify with the prosecutor's argument so the prosecutor took something that they were claiming eliminated unremarkable and they actually use it as a in this case is yours and a house of guilty because we know that knowing couriers have trackers that are put into the air into their cars and he's and that's how you expect up to move across the country and consistent with that pattern statement made an opening but of course open heart was very evident and closing i'm closing up in the argument before before trial right your honor but i think his lies clear that we're talking about profile evidence but generally it's not allowed the trial and there's limited exceptions and one is that it's a door but here the defendant didn't open the door because the government elicited this testimony in its case in chief on his direct examination it did they listen to testimony that that from lately they were starting to be used even more often but i don't i mean he was a drug trafficker i mean he did he did bring the drugs in so the only issue was no your honor i think arguing that the presence of a tracker is one hundred percent consistent with how you would expect to move across the united states is profile evidence and saying that there's this characteristic attractor and that's typical of people who are  into the united states because mr than say how fit that profile you should find him guilty for that reason  and i think the problem with this testimony was that the district court and the government refused to turn over the basis of agent agents or growth of testimony about the  vacations and the government continues to claim on appeal that a claim for the st time on appeal rather that it didn't have access to information about how often g p s trackers are used by unknowing the government's response was that they don't keep records the government's response i believe that the primary response below from the government was that it would be very laborious that not that they don't have the records the best that they have a case of but that would be a laborious they haven't yet come how the lists and so it would be a laborious for the government to go out and have to compile that letter and work work work work gives you the right to make lists as opposed to i mean this rule six the richer as i read it requires that they had a list they should have given it to you but they have they said they had a list of the crimes that i just described and so what you would be dealing with arguably was simply brady material not a rule sixteen so i think we i think that again goes to the fact that the government elicited testimony about the prevalence of trackers at trial and its case in chief but use it off emphatically as a sword not as a shield and then at the same time to deny the defense the access to these boys even if they had turned over the both themselves and said look these are the boy if you go through and figure out whether any of us correspond to know in couriers i mean been through the onus on the defendant i mean they essentially use evidence but do they give mr th haas information that he needed to challenge the basis of that of that testimony about the problem and no there's no indication that the so called bullet what you wanted which was that that there were people with you who determine that the information we were seeking about the correlation between unknown couriers and trackers didn't exist ok i'll hold counsel in discussing this thing about discovery is that is the i'm just trying to make sure i understand the record in your st request st from discovery of this type it seems to me that the court said no i'm not going to give it to you if it was somebody f declaration saying that you were set up and then it seems to me nobody filed the declaration is that true it's partly true your honor so that was actually i believe the nd hearing on the discovery issue the pri seemed to me that when the district court finally got to the point even saying man might be material or is what dario i don't know then the court said i don't think it is so you filed me a declaration saying you're set up and i'll look more into it  was that was filed but i think that goes to one of the issues that we raised in the brief which was that requiring misters and a half to file a declaration essentially pitted two of his constitutional rights together and see that i have two half minutes or begin with officer toward rose as well i don't think that councils really argued that sue works much i think they got more into why didn't they get the documents given where you were going certainly i'm happy to address that and i think there are three reasons that the court got that right as well number one is that the government did not possess the information that sunday house was seeking number two is that the speculative statement about a possible set up was not enough to this case was harmless so i'll begin with possession the government explained pages eighty seven through eighty nine of the record that it had asked the case a dismissals that resulted from trackers case agent was not aware of any case like that the case agents as well as a supervisor and the prosecutor also confirmed that there is no record to calve no memo or anything like that cast of g p s trackers in the road seizure cases and the reason is because the prosecutor said it's not a big deal they see traffickers in most of their drug cases and so they have no reason to keep track of it so to produce the discovery that is and a house was seeking the prosecutor and all of the agents and other prosecutors would essentially have had to comb through all of their files and look for some sort of reference to a tracker in and or a wire or property seizure or and then jot that down jot down the disposition of the case compile all of that information and then put that information out in discover attempt to make a showing like that the only evidence we have on that point is that discussion where the prosecutor confirms that neither he nor the supervisor horrific agent had any database  indication that the district court would have to do something because the government to do more with that maybe the reason i think that's correct your honor and i have been they have to take the issue with that requirement of a declaration but accurately says could violate their rights to make them talk i think that it would be accurate your honor if then they have had established a right to the discovery so what other words if this information was material and yet the court was still saying i need you to file this declaration before i give it to you then i would agree there would be a real problem in conditioning rules sixteen discovery on th amendment rights but that's not what happened here the court is already said you have no right to this discovery because there is no materiality to this discovery and so therefore there's no constitutional right conditioning on a valuable government benefit it's simply a sort of extra option for the defendants stablish materiality after he failed to do it in all of those records citations i've just given you and under those conditions there's no th amendment problem and then i also want to know the points  i think i've mentioned that the government in possess this information but they're also really was no if you actually drill down into the discussions of this issue there was no showing of materiality that was non speculat was really no theory as to what this was going to do or is and they had and as a result the court was on firm footing in saying that this was a purely speculative theory that had been potentially set up and therefore i should may not have caused the jury to disregard the compelling evidence of guilt in this case so if there are no questions on that then i'm happy to circle back and talk about the la in this fire was undisputed that misters and a house denied knowledge initially now the government wants to claim that it was a slam dunk confession but i think that's contradictory to the record where it was what really was the confession was actually contradictory   the correlation between unknowing couriers and g p s trackers and the district court understood the maturity value which is why the district court was inclined to have the government conduct a search and it was only because the government continued to object that undertake this task unless the defendants commit the declaration and i think there was a contingency that the district court was placing on mr is and a house is th amendment rights if we look at page ninety two the district court says i'm prepared to have him at least search and seizure case the supreme court intersect talbott that they could not use testimony or an affidavit that was submitted to vindicate his th amendment right to and to be subsequently be used to there i see that i'm out of time you get to see that your time so if you could just sum up counsel during your honor the last point i would take is that this case wasn't a slam dunk it was an overwhelming evidence and i think we see that from the fact that the