allows the use of this sort of testimony to address bias or to calm down witnesses that never testified at trial he introduction of the evidence of from  but when that argument is combined with expert testimony i think it it crosses into a dangerous area where the government is simply using expert testimony to not only argue that other with this is would have testified in its favor that never testified but to the specific instruction that this court had noted in hanky and talk to hosty that dealt specifically with this issue and if you know i think there's a serious concern in these sort of sorts of cases where the government puts in this  photographs that showed multiple witnesses around the scene of the salt while it was occurring mark are you saying that the government should have called each of them and had them stay mom and then it would have been acceptable or can  an undeniable inference that the people who did not testify because of the code of silence would have felt the government's case you please the quite funny hearts on behalf of the united states in order to reach the conclusion that this case should be remanded that the conviction to be reversed in case should be remanded for a new trial the defense relies on what in the government's you are for flawed premises and the first one is that the district court admitted the code of silence evidence specifically for the purpose of allowing the government to argue that but for the code of silence the government could have called numerous additional witnesses in its favor that is an extent to which the government never went in its rebuttal closing argument video unlike the gang incident that takes place in the middle of the night in a neighborhood where no one can see what happened in this case the jury saw what happened on the video and the jury saw numerous inmates milling about standing watching sitting at tables throughout the whole first part of the incident that was captured on the video so the government did say in its response to  inability of the government to obtain truthful testimony from the numerous additional witnesses who were standing around at no point either in arguments before the court during the trial or closing did the government say that those witnesses would have i would have are would have testified in the government's favor in fact the evidence and i do say at trial through both  lieutenant russell and correctional counselor evans is that these witnesses would have said anything that was what the code of silence was there to explain  and lieutenant russell when he testified he said that they conducted nasty interviews immediately after the incident in which they isolated all the inmates who had been there and who had witnessed it and out of those seventy five interviews only on in me in my charge has said that he even signed things the rest of them said nothing happened as far as they were concerned and in the video there were at least four inmates standing around who were named by lieutenant russell in his testimony and also by correctional counselor evans in her testimony who should have been able to say that something happened whether the defendant did it or whether somebody else did it but they said nothing happened he can remember an incident  f and then that brings us to the closing argument of the rebuttal closing argument of the government and i think it's important that this issue was not mentioned in the government's opening it was not until absence of any evidence and it could have paraded in all these inmates who were witnesses to the event and none of them would have said anything and then the government could have proved its case by that so it wasn't until that issue was brought up in the defense's closing argument that the government then in government they know what happened and they know who did it the government said the reason we brought in cd called to testify was to make sure you understood what this environment was like and their unique characteristics in a prison environment and the code of silence one of those unique characteristics and folks just don't ignore it the government also said prior to the statement that is focused upon in the defendant's brief we didn't bring the men because we knew what would happen because we interviewed them and we interviewed everybody that was in there during the lockdown and they all sat with the exception of inmate child as didn't see anything you never saw i think to think those were the those witnesses who equally unavailable to both i think that's correct and for all of them to testify to explain who was who was not the perpetrator of the attack i think the government was responding to what inmate defendant montezuma's council said and  and then the government was saying well why didn't the defense do it and at that point the defense counsel did raise an objection that the government was implying that they had a burden to put on testimony an obligation to bring in witnesses the district court addressed that issue not issue was not raised on appeal so i believe that what the defense has done is take certain comments certain sentences out of context but when you look at the entire rebuttal closing argument i don't think that there is necessarily an inference that would have had to be made for the by the jury in order for this conviction to be reversed and that is that those witnesses would have come in and testify for the government the jury could equally have inferred those witnesses wouldn't testify for anybody the jury could have inferred those witnesses might have said that somebody else did it because they're afraid of that i guess is an imprint the jury could have made but in light of the fact that we're at the testimony that was used to trial and what the government senate's rebuttal the evidence would have been i don't remember anything happening and that's indeed what in me child has sa think i remember something happened but i don't remember what it was he didn't even concede that there was an assault right in front of him so i just don't think that the jury i think the point that the over and over and over again that the government was using this evidence to explain why it didn't have more witnesses in support of its case why the government could have called numeral numerous witnesses in its favor  implying that the government could have called numerous witnesses to the incident that would have testified in support of its theory the defendant a codefendant were the perpetrators of the assault but the government never said any of those things at the most it was doing w said if the government's theory is correct then with then the government can simply call any witness to the stand they don't remember anything or didn't see anything that the government can argue well that when this favors favors the government the defense counsel is not addressing burden shifting which i think really the government was doing at that point but we still had a vaccine problem we still have the government using these nonexistent when this is combined with a code of silence to say if there was evidence that contradicted  statements twice during the rebuttal closing argument that if if if they had with this is that contradicted the government's case why weren't they in court thank you thank you very much if you're here to be submitted