welcome to the fifth circuit first day of oral argument we just have two arguments this morning and soon each of you are familiar with our lighting system when you get to the customs officers found approximately fifty five hundred grahams or the equivalent of about twelve or thirteen pounds of controlled substances in a box in the engine compartment s that this was not a strong case for the government because of the weakness in the evidence for the government the government did not play fair in this about the characteristics about the drug career himself and then drive to read why the tweet got characteristic and the defendant and that's exactly what happened in this it before the trial began i suppose released before this objection was made and it is simply talking about saying that any particular witness is lying if the evidence is inconsistent with what that person was saying reason most of them have only one key but that's an indicator to us you start looking at it a little bit harder when some of these indicia of drug trafficking or first observed decision me th least in part that's what he was qualified to testified qualified by the judge in declaring him an expert that he was but was one of those he was qualified to testified to as to why are this particular case why the  fine line and a good example of that is in the case of gonzales rodriguez cited in the party's briefs in that case for instance the court said and this is on plane air review the court sa proper to testify that drug traffickers try to hide contraband in the gym and that when he investigative agents and the first thing i look for is was profile testimony but i don't think this is even in a fine line territory because officer morale is wasn't testifying more broadly he could out he was qualified to do so but he was an investigative agent he was called down after drugs were found so he wasn't even testifying about background that might have explained why the investigative agents takes it to delineate what ben faith means in the context of a case like this the government appears to have argued in this court and i think this court has from being able to make use of it i that is too strong a showing to justify the sanction that we asked for in this case there's no question that there was s n the truck was intentionally so in a forfeiture auction the government had an order telling it to preserve the truck the question might be what was the government's motive but again i don't think that we should have to show that the government purposefully stole the tried or of the harm of course you must have some basis for wanting to within his motion in limine which is document number twenty seven pages seventy three seventy seven but the motion women they said that there should be no questions of defense witness sted to a question like that yes you were just asked not you i don't know who the questioner was maybe it was you as i was questioning the defendant about the drugs in the truck if anyone else is driven and if invent a mechanic shop you know what sort of stuff when i got to the key i could tell in my opinion he was trying to mislead me by telling me you know his parents anyway that his explanation for the single key he was certainly getting into the area that the defendant was lying to me at the scene not another witness at trial and but then the objection is based on a motion eliminate the objection is th then after that objection agree that he was asking a question about whether isn't it likely that or he was stating it seem likely to me the defendant was lying to me out of the scene of this search he was why didn't you question was why didn't you initially tell him about drugs and he starts a long answer and then he says when i got to the key in my opinion he was trying to mislead me about his parents opening no record the other opposing counsel said of what was said at the bench that's correct or is it wasn't just not described transcribed it was a not recorded at all and transcript only one case will go through the player factors for me why do you still succeed if we see that is the nature of the import of the testimony well first of all it's not a comparison of characteristics to be a generic case here again it's there there's a fine line between expert testimony comparison methods of operation and today coming generic problem so my argument would be i'm playing here this is this is  analysis is a completely disagree as to the strength of this case these were and we didn't go into the to the evidence but it was a series of incredible explanations a quantity of drugs  recession was a major i'm sorry was that it made one of them sort of explanation given to the jury in some form that got the idea in front of the jury that they couldn't check this particular point out it he hires he been prejudiced yes i don't believe that he has been prejudiced or what is his argument i'm saying i mean i don't understand is argument is good if the hood ledge if the shield of the hoo that i honestly cases or kind of all over the points in that the government can point to virtually anything to show that the defendant might have had guilty know the objection to preserve the drug courier proof i will issue it was when the testimony crossed the line that there was an objection mr rodriguez was trying to mislead and that is kind of the nature of drug courier profile testimony because you have to look at it in terms of contacts and usage and i think that the case we're actually there was some testimony that crossed the line this was an investigating officer who testified that there was indications harir characteristics and he tied to directly to mr rodriguez it wasn't a case where with the bundles of many where there's just general testimony and then it may be a fact that is or is not in the case this was directly tied and i believe judge joe else you know what was the jury supposed to make of officer paralysis  testimony and that has to do with the the usage that was made of this testimony the prosecutor in closing told the jury you can find that mr rodriguez knew there were drugs in the in the truck because you know how junk smuggling works you heard from the expert there was a single key so i think that even under plain error review this is with him so he must be a drug smuggler and there is one factual and accuracy that i just must correct before i forget to add that testimony was not that the car had to be brother in law or sister or somebody that stuff the drugs in the us i think there that was a theory in the case because the brother in law specifically had the opportunity had access to the key that he was a likely suspect but obviously expanding the list of people who could have had access was important evidence was not present when officers were inspecting the vehicle looking inside the engine compartment doing what they do with the x ray in the drills he was waiting in passport control so he he had no opportunity to observe that  and as far as especially asian just a couple of points we did have an opportunity to inspect the the truck three weeks after our client was indicted trial counsel went out to take photographs and it's from that that she formed the impression that we were going to need an expert to see if there was evidence of tampering i don't think it's  to say because we had this initial opportunity that there is no there wasn't a need for further investigation it's actually what prompted our seeking in obtaining an order requiring the government to to preserve the tru