improperly precluded defense counsel at the jury trial from calling an expert witness toxicologist named mark powers when the district court ultimately granted the government's motion to preclude such testimony the district court specifically said it was granting the motion based upon the arguments having been made by the government and the government's argument both in their written submission to the court and in their oral argument improperly sixteen did not apply nevertheless it would have been properly excluded numbers i think was seven o two is that right yes i believe so your honor review mine for directing your the admission of testimony by an expert witness and i think and in this particular case although all those prongs were met specifically the toxic did have specialized knowledge that would help the trier of fact his testimony would have been based upon sufficient facts or data so what rights back to the property of the court as being the basis of his opinion well the defense counsel at at the trial level sorry not you that's that's fine argued that his expert testimony would have who the same testimony or someone else has not disclosed the principles and methods in the data upon which the expert reports are alive and would you just tell me where in the record really due to the peculiar nature and circumstances of how this played out defense counsel was quite clear in saying i don't intend to call these witnesses and the cook the district court inquired specifically about what the testimony would might be and whether the government would have an objection and defense counsel said and he didn't proffer specifically as your honor just said because he said his experts at the time we were talking about to each of us not to call one of them the medical examiner or that the doctor at this point only focused on the toxicologist but he said his his expert would not differ whatsoever from the testimony of the government's toxicologist and then he stopped because when he said that the district court jumped in and he said ok so it's not going to you're not going to put the top toxicologist on unless the government's toxicologist testifies to something different from what's already in the report that he turned to the government and he said ok that's the case and the government said well under that circumstance if the defense toxicologist is going to be testifying in accordance with the conclusions that are in made by the government's toxicologist then we have no objection to it coming in and therefore defense counsel stopped at that time he didn't continue to proffer during this find they tell me why it's not harmless because when head and therefore if if the only proper is that it would have powers would have said the same thing and the government expert wired what is the harm what is the evidence that would have been admitted or was excluded well that's why this case is so unusual on the friday night of of the trial which is may t and my understanding it was at the end of the trial day not in the morning at the end of the trial day the government told the defense that it would no longer be calling its toxicologist instead any testimony about the toxicology only if the government did certain things the government to do those things so that would be reason enough for the court to exclude it but additionally what the government witness did say was what you said that this witness would say so how can it be harmful that you well know well the defense was sandbagged because they they didn't going to answer your honor's question i'm just pointing out they would have cross examined d o c m a differently so that's one of the reasons and number two i don't believe that the doctor sirat the government's medical expert did testify to what the toxicologist would have testified to what the government's witness said that it was the combined effects of the three drugs that create created a type of acute toxicity  and that was the cause of death the combined effect and what the defense attorney was trying to put on through his toxicologist was that the heroin by itself would not have guy die of something my client didn't distribute and you would have introduced evidence he might have die not of heroin at all but a federal that is toxicology depends really just go out the window because it only works if you convince a jury of the true proposition that no could kill and i didn't distribute and well then you're out there open up and you're out the window below i think i should start st with the harmlessness issue with respect to the expert the court is exactly correct the jury found beyond a reasonable doubt that a conspiracy which paul had met and was a part of distributed of drug residue and that drug residue tested positive both for heroin and fenton all and those glass seen on the lopes were consistent with the hallmarks of the type of the lopes that is conspiracy distributed single folded on below either clear or blue in color so what the appellant has not demonstrated and cannot demonstrate is how even if dr powers should have been able to testify how his testimony would in any way affect the verdict in this case and i would also add that his testimony is at most at most duplicative of what dr seager off the government's expert who did the testified at trial spoke about high that said appendix three hundred and twenty nine and she said that that was a fatal concentration of fentanyl so her testimony didn't differ from dr powers and important i think we've covered the  told them i know who did this i'll tell you everything i know where he lives and his name is paul i know who did this you know your response to that is has been that well she had personal knowledge that he had just supported by the fact that she had personal knowledge of their prior drug dealings so i don't i'm having trouble understanding why it wasn't prejudicial and unfairly prejudicial to admit this statement justified had personal knowledge of it and i think it's important for this court to note that judge crotty did not make that choice until jessica five testified and jessica five testified as follows she testified that she understood a man named paul with m primary heroin dealer she testified about numerous interactions the two of them had she testified to driving michael i know on approximately five occasions to a hotel in new jersey where michael i know purchased heroin from a fr argue is just a minor part of her testimony is very similar to united states betoken in that case this court admitted as an excited utterance and sat and found that there was sufficient personal knowledge under six o two for the declarant to say mary a building for jack meeting live building on fire for jack in that case in the clear and did not testify and was not subject to cross examination of course misfired was here but more to the point the evidence that the building was lit for jack which is what the defendant objected to the four jack was limited to two aspects first that the declarant knew that the building was opened by a key provided to mariel and the declarant knew that  k frequently asked mary ellen mariel's friends to help with issues related to the business that was set ablaze here there is a lot more evidence to show that jessica five had a sufficient personal knowledge for reasonable fact finder to find that she understood what she was talking about she understood the relationship between michael agnello and all that man and secret then she didn't but the only thing that she really had personal knowledge of from what you've said is that he had procured jug  drugs from bananas in the past right i mean she didn't know because she didn't see which drugs he took and she couldn't preclude the possibility that he procured them from somebody else show that she had personal knowledge that michael agnello box drugs from paul that man and and the more and the late at night early morning when she discovered her boyfriend's body was crumpled up on the floor because of his bedroom surrounded by drug paraphernalia and heroin envelopes she knew because it's official is there any evidence which he knew that he knew nothing from anybody else there is evidence there were there is evidence that she understood that there were various people that he had  long time ago and that all came out of trial and she was subject to cross examination about all of these issues including that she wasn't with michael i know on the night that he had died but she knew that michael i know him paul then and had a relationship where all the night and provided drugs to michael og now and so when she found his body is there in your brain between the personal knowledge requirement to support admission of an evidence recognizing this court's decisions recognize that there's a difference between a hearsay admission when someone sees something and immediately expresses it and when someone is in an excited state and therefore their check their declare their declarations are believed to be more and the victim's regular drug dealer i know where he lives he regularly sold drugs and my boyfriend no problem there right every bit of that is based on our personal perception in the from stuff you know right there are two different things and isn't the st component of this excited utterance and lay opinion and my point is maybe that's admissible as an excited that the person who made it really believes it without cross examining that person the question of whether vet person had the kind of knowledge that would permit her to there is no way of cross examining and questioning the existence of personal knowledge which is why that's a problem because excited in this case i think it's important to note and unlike in tokyo which this court affirmed a similar situation jessica five was cross examined and the limits of her knowledge were made very clear to the jury and that was argued extensively during closing so even if there is any error here in the government doesn't believe there is the government doesn't believe judge crowley of yours has discretion on this regard any errors certainly harmless because all of the limits of her knowledge are made planes which are very good thank you very much we have the argument we'll hear about all history in l a you have two minutes yes so the answer is no the government would never have even asked that question based upon the foundation that where it was laid and your honest question was that if he had asked that question would he have would have been would have an objection have been sustained and certainly the prosecutor is trying to push this back  to the hearsay rule but the focus d as your honour's obviously understand is on rule six hundred and two the need for personal knowledge and the case of united states versus toko which the government is relying on ok so but to you instead of would like to argue why there wasn't so much of that it's that it was your client this is it that this that even if it was was not harmless but is basically what she has said was he bought these drugs from your rever been from somebody else that's the thing as to which  i would focus on the fact that there was evidence that the deceased michael ahd no had other dealers  he in point three i bring up the fact that the deceit in xp rather told fife that it might have been another dealer who had supplied the drugs in question another issue is that on the bed next to michael og no was a new a very long needle the type used to inject steroids  d derek young who testified that he injected steroids with michael od no testified that they had never used that type of needle such a large needle to inject heroin which suggests that the fentanyl that caused the death of mr og no was not necessarily mixed in with any fentanyl and certainly not mixed in with with i'm sorry it was not mixed in with heroin and certainly was not mixed in with heroin reefer it was saved in the bone as angel jim this the deceased had had contact with that other dealer in the and the very in the days leading up to the death then you had the whole issue of the bias of the officers who did not check what was inside that i'm going to call it the needle to inject steroids the large needle they didn't do a laboratory test on that needle they didn't check the two phones the only checked one phone the detectives were very invasive as i summarized in point three of my brief on whether or not were about how they failed to follow up on these leads that other three to follow up on that and then of course my client testified and he denied having supplied the heroin much less heroin laced with fentanyl thank you thank you very much i think we have the arguments we will take the matter under advisement well argue thank you thank you