recently this court's nov first opinion in united states v rosamond which is it forty one third ninety five conclusively determine the outcome of the proffer issue in this case which is the district  court committed reversible error when it permitted the government to enter mr lyle's proffer statement in light of this court's clear statement and rosen and that it's settled that merely drawing the jury's attention in an opening statement to the government's lack of proof on an essential element on which the government bears is one that's not what happened here well we respectfully your honor believe that that is what happened all that trial counsel did was to say that there was a was an affirmative statement that he was doing this just for personal use well i disagree respectfully your honor because if you look at the statement right before that what trial counsel was doing was repeating what the government had already introduced or not introduced yet because it was opening statements but had said this is what you know mr lyle has done and what mr lott has counseled stood up and said is yes you know we agree that he did this we we dispute the issue that goes to the element of count three which is that he then distributed so i problem with these kind of waivers is that counsel has to stay on the right side i understand that opening statement where of course the defense has no burden whatsoever counsel could certainly have stood up and say i submit that the evidence that the government's going to do will not demonstrate that mr  was a methamphetamine dealer but the two sentences here suggest that you were making affirmative statements that what he was was a user and that's that's what's the government is that the question is whether the defendant and i'm quoting here offers an alternative version of events inconsistent with the proffer statement and merely saying that he used drugs himself was not an homicide and then the prophet says actually we did intend to kill him or in cases where the defendant is actually saying well i didn't do it this other person did hear all that the opening statement is saying is that there is a dispute as to whether or not he was a dealer which i submit is merely drawing the jury's attention to the question of proof that the government is going to have to address which again rosamond didn't rule on this  well that's if that's a fair that's a fair point your honor but i think the reason is because the government was repeatedly given the opportunity because when you're right that when judge crowdy decided it was not until much later to point out anything in terms of testimony or cross examination argument anything since then and the only thing was still that one statement right in the opening statement saying that there was a dispute about this issue so while it's true that this court does and should give deference to what the trial court is able to see the trial court still has to have some rationales has to actually have something to see you know it's sort of like what th court says vera you know that this court the second circuit needs something to be able to review in order to be to do meaningful appellate review and when the only thing that has been identified is the basis correct i definitely know the knife i'm not sure offhand whether whether it was the testimony of the police officer that he was driving with a suspended yes he was definitely he would he definitely there was no question he was driving with a suspended driving without a license i would i would raise it to brief response is that first is that this is a theory that was never raised in the lower court it's never been briefed the government did not proceed on the idea that this was  done in any way as evidence of you want to make an argument if we clear that hurdle or do you just want to yeah well yes because i because i don't believe that  this traffic love violation you know is that that merely an authorised use of the vehicle under the rental contract is a crime and i think the sixth circuit  law i'm saying that i'm saying that if you were driving his own car i do not believe that it might be a different matter but but even there the question the question is here whether someone driving a car without a license you know the police don't want to i wasn't driving they stopped me on the street here's a lot here's the situation here's the car all right let's let you rebut after we hear from the government ok we're actually we're here first from my counsel for om i'm going to start i think the question of whether or not there was sufficient evidence to establish a conspiracy between the two defendants because it will control in both of our  mean legal points celeb going to start there and i say that because i don't think a fair reading of the way this statement was presented i don't think you can conclude that it wasn't a brute violations of the the real question is whether it was harmless or not let me ask you that you challenge the admissibility of the proffer but then you never i didn't see where you challenge how that's the argument you're making now but that argument i didn't see raised below when i would like to say that that his that's very true and it wasn't in precisely that way but it appears from the record and i wasn't there i don't know that it was a mistake on the part of the attorney who made a lot of mistakes but that's a relevant here before exactly what we have to stay with whether who who i was talking about even though the names weren't there that's there so that was enough to you do it because there were a number of players here but i'm not sure you pointed out to us where if the government's reaction clearly established in the first one let me just say that you don't concede that it was properly redacted it included some names and left out others which is a  conspiracy between the two and as i said i said my brief i don't think i need to go on here that was the theory that the government was proceeding on below was it was that the conspiracy was between these two f described as individuals and one who was named which was bright brandon hodges of the supplier now in the course of the cross examination he said didn't he raise didn't he mention other issue the issue is the damage that was done to my client who did request these separate trials i know you want to reserve a fair amount of it on the rebuttal so i want to ask you sure  indictment charges and the court charged the conspiracy between the defendants and authors and i'm not sure i understand why your client is not properly found guilty because of his agreement with mr ter in the charge because that wasn't the government's theory at maine that may not have been their principal argument but there is no doubt looking at the trial record that cheron tina was an admitted member of the conspiracy the the government was free to prove that the jury was charged lyall them brought and others so it went to the jury on that theory it really didn't go to the jury on that theory because the prosecution is the the prosecution sets up the case and it's up to them to to if we're not persuaded by that is there any is there any other concern with finding your client guilty on the on the and a lookout there were multiple names mentioned there is one person sitting at the table and not ideal that defense counsel decided to elicit names and elicit that it was they were being left out for legal reasons  we submitted actually had to the effect of further obscuring the fact that perhaps mr van praagh somewhat helpful it was helpful it ends up being helpful because there were multiple people referenced in the redacted statement and then the jury hears four five six different names and it's i think the fair inference is oh those are some of the people he was talking about so we think it makes it less harmful or prejudicial to mr van praagh in this particular instance a protocol for pound i understand that was a protocol for the subsequence or no there wasn't there it's not it's not in the record and in fact if this court were to disagree with our legal theories  and if we disagree for a fact finding purposes on that yes but we don't think it's necessary again it's important to remember here that what defense counsels actually say is that the officers acted pretextual that it was only reasonable to impound this car and in context that simply fails the idea that the officers have just arrested someone who is wide to them multiple times and now they have a car that turns out to be a rental car sitting on a street in midtown manhattan which perhaps was legally parked at that moment but as judge probably certainly knew would not be legally parked for long they would have been derelict if they had not his position that he would have a school friend come retrieve a car that is his position the officers were absolutely not required to accept that he had just lying to them about almost everything else the south precisely your honor this is this is a person who has just lied and to go to another defense argument this idea that well he would be out in a few minutes of standardized protocol so i think we just want to be careful about how we describe what pretty routine sort of held and that's why we discuss some some of the cases that came after her team talking about bertini certainly stands for the proposition that if there are standardized procedures in place for the empowerment the net will almost always be reasonable a reasonable empowerment we do not think stands for the idea that you must have standardized procedures and that's why some of the circuits of come out saying you don't have to have them further from what we're doing in fact wreckers itself says that while we're not going to look only at ownership principles we are they are still relevant to a privacy inquiry here we have a situation not w a and authorised first off the owner did not gave mr lyle no permission to be in the car the owner being the rent the rental car yes precisely we have a situation situation where again on this record mr girlfriend who was apparently the authorized driver though he never put a rental contract in evidence gave him permission to drive that car but that's a fallacy she she could not have given him permission to drive the car because he had a suspended license it was illegal for him to drive so you can say is that her permit him would not have been it's in doubt it's totally invalid this isn't a situation like some of the cases where we have an  the rise driver driving a car and in the six circuits with this is like me giving permission to my thirteen year old person precisely it's again we're not suggesting it's it these cases are controlled by the sort of ownership case sorry by the cases where what we're saying is that the fact that he's in the car even legally not just in violation of the rental agreement to make this more like a case where someone is a burglar or is inappropriate is illegally unlawful it's simply to say that the argument well my girlfriend gave me permission it gets nowhere because she couldn't do that she couldn't say drive the car you have because he had the law forbids  test that the government proposes we adopt in this case we're proposing that the court follow essentially sort of i think the way the third circuit is framed is that a driver does not have a an unauthorized driver of a rental car not rented by him in which he's not an authorised stripe no license to be driving a car that that combination of circumstances is not one in which possession of the car is  society recognizes reasonable expectation rather than pronouncing meet this need that to satisfy it it all cases i think there are multiple ways that that the court should try to resolve this  one your honor is to say because mr y was an authorized driver of a rental car he did not have an expectation of privacy in a court think that's what but your honor's point another way to resolve this case without getting to that issue necessarily is to say whether we were to look at the six circuit test whether we do or look at the third circuit test and i don't want to misspeak as the third circuit did its test with extract so acknowledge the six circuit case that took the totality whether this society does not recognize the an expectation of privacy you'd like us to adopt the broader test that you start out with yes and we encourage that in our brief but we think either way this  government would prevail with either text unless the panel has questions i would only be repeating some of the questions the court had said about the proffer statement pardon me about the the issue with the admission the it was a methamphetamine is a statement of dispute enough to trigger a waiver so yes as it's put here and not guilty plea dispute there every element of the crime to go back to you on this first question before we get to the second one we are of course putting this in context with the first line the judge chin flagged earlier but now to go to the second part a plea of not guilty is a very legal sort of a very short legal statement that at the end of the day when you see whether it's the motions because we're going to suppress things whether it's because you're going to find people and you know the case has a legal problem the indictment is flawed whatever it might be i am not going to convict of a crime it can be honestly made without reference to the facts to any fact a person could be could have committed absolutely committed a crime and say quite honestly i'm not guilty because i have a bunch of legal reasons or you're going to find this efficiency your governor hasn't carried its burden a million different things and in fact if defense counsel here had not said the first part about methamphetamine for his own use and he simply said where we dispute is the evidence that he was a dealer or something along those lines or what we dispute is the government has not carried its burden words matter in this context and that's what  most recent opinion in roseman stance what words matter how you put things matters in this in this context and here they put affirmatively said that the methamphetamine was for his own use and counsel went on to say we dispute the idea that he was a dealer can your honour's judge lo here i would really suggest that if you lend your keys to thirteen year old me to to put things into the trunk or to take things out of the trunk that would be completely reasonable it would not be that you have not i was to draw what that exactly that's exactly right and i should leave who put in prison in the addition of my son that's exactly you you hit on it because this has nothing to do with whether or not he can drive the car his expectation of privacy in the trunk it's whether he had lawful or authorized possession over the trunk of the car and if the thirteen year old isn't on the rental contract it's this thirteen year old can st the driving it's true that he was driving but the driving is not the basis for why he has the expectation of privacy the expectation of privacy is because he and he alone and his girlfriend have the exclusive right to access here is something that will fit with the scenarios were different that is that if the police officers not see him driving but he was just he went into here approach the rental car opens the trunk or don't see is irrelevant to the threshold question which is whether he has a reasonable expectation of privacy that's what raca says that the question is and the question is when someone who unquestionably  if the thirteen year old can put things into and out of the trunk and has an expectation of privacy that she or she doesn't lose the that expectation of privacy if you she then later decides to take the car for a joyride that that later aspect  because well you know he could have been a passenger and had the gun in the car had the drugs in the car or whatever and i'm not sure that you've got i'm not sure you either org you that below or that you've already forward i want to ask you a statements almost to the same effect were admitted i just want to make sure i understand why we might not have harmlessness conclusion here yeah i have at least three responses to the prejudice the first is that well the first is obviously that we believe that the post arrest statement should have been suppressed as well as part of this other fourth amendment issue but that's neither the threshold yeah so beyond that it's because the proper statements were were well beyond what was merely in the post arrested in the post arrest statement all he says is that what was said or represented i don't know which mr newton at that and i didn't dispute the statement that city distributed so they were consistent only to the extent that we believe that even if the proffer you know even if the waiver were were accurate that what's in the proffer doesn't really actually even addict and he had seen terence you know put the drugs into the car so that first of all is a very significant difference between whether or not he x number one would hear that one number two is that the that because the co spirator in the cooperating witnesses presented testimony that was so incredible the government was continuously through its closing argument trying to distance themselves and hammer on all these other things in this repeating you know over and over and i think it pages twelve to sixteen of the blue brief is where i go into all the prejudice from all the statements that are being made by the government you know throughout you know it's closing arguments you know in order to try to hammer home these issues from the proper statement and i would respectfully address your honor's to that discussion there  confession because that implicates the defendant because the defendant doesn't have the ability to cross examine that witness the violation is not that it's government with misconduct well when i would ask your honor i mean i am certain that there is no case that holds that where the code defense counsel brings out the redaction as opposed to the redaction being brought up by the government that that's though that in fact by defense counsel bringing out these other individuals it was more helpful than harmful why don't you address that first of all there were two statements those other names related only to the proper they did not relate to the poster a statement so the argument doesn't help the government as you said but one of those statements was equally as prejudicial there were separate witnesses that testified to the two statements that when all the dust settled the jury had a half dozen if not more of possible people who were the referenced individual not in context but even if it was the law is very clear that what you don't want the jury to do is is speculate on why certain names were left out for legal reasons and other names were left and and that jurors are not stupid and that the obvious answer and i i mean i i think we cite cases to this effect in our brief that they'll figure out if it's for legal reasons they'll look over at defense table and say oh that must be the reason and that if anything it places it forces them to speculate or encourages them to speculate even more i believe that it's pretty clear case law both in this and this circuit as well as supreme court judge only on fin raise one quick thing just to lay it out because as a matter of i just think it's unfair is i know this is not going to go anywhere but i think it's important for the court to consider when you look at the sentencing issue that my client was diagnosed in two thousand and five with full blown aids he's already way lived out lived his life expectancy so it is a law basically a death sentence he's been given and neither the government nor the court address that issue and thank you thank you all sides for the vigorous arguments thank you where you take the case hundred vies men and