trial before the district court the prosecution and the violated the law of the case dr and by impeaching a defense witness a crucial defense witness with evidence of a criminal conviction greater than ten years old in which the district court at the first trial had all or already ruled was the substantial prejudice to the defendant outweighed any minimal probative value but as i read judge kenny's ruling in the first case  he's got two grounds one is the spread yes and the other is there was no formal prior notification which was required this time there was no information that's correct absolutely correct but as i understand rule six o there are two conditions precedent to the government bringing out this criminal conviction the first being notices the court's indicated the second being the balancing test under rule rules for all three and so now in the second asked for and then lemony hearing on the question i mean there are all kinds of things you could have done in fact that's the purpose of a prior written notification to get a ruling for the before the bell is wrong yes the defense thought the issue was clo disabilities conviction and he's talking about you know you know about drug dealing there's no raising of the conviction and when there is the objection immediately follows immediately follows i read in the defense counsel believes that the prosecutor was trying to very carefully script the direct question about a conviction which rule six the line talks about evidence of a conviction not evidence of have you been around drug dealing in the past conviction by just going to his back acts you should have been objecting you can't impeach a person by going to his back that's that's probably accurate yes but at the time it seemed like the prosecutor was very carefully going really seemed to me that the prosecutor would not even attempt to elicit the conviction again i was frankly flabbergasted when he when he uttered the words haven't you been convicted of manufacturing distributing drugs before  the defense opening statement which clearly is focusing in on the knowledge element lack of knowledge element to the conspiracy in the two other substantive charges so we believe or submit that it's clearly a lot of case issue there were those changes in the circumstances of the fact that notice was given really doesn't address the second prong which is the prejudicial effect the upon the defendant by bringing out the stale conviction of a crucial defense witness the prosecutor prosecution prosecutor misconduct cases the sanchez robel this case talks about is there misconduct i think clearly there was secondly was the objection meet in timely fashion on the record i submit it was a came immediately after the prosecution stepped over the line so to speak and prejudice to the fan and i think is apparent  that instruction given a curative instruction was given by by judge came ocean to strike me and granted yes yes but the bell had already been wrong i mean the curative instructions are great in theory but when you have a jury sitting there and they've already heard this damaging evidence even though they may try as hard as they can to listen to the judge's instructions to strike it from their memories it seems to me that in the deliberations is probably a very difficult had a hung jury at the first trial where no evidence of two prior still convictions came in and at the second trial the prosecution did elicit testimony and evidence of two prior convictions and the jury convicted him with the second trial so i think it's an prosecutor prosecutor was mr mueller who is serving in arms forces in iraq or he would probably be here himself so i'm standing in for him but i did prepare the briefs so mr millet's conduct may not have been the most prudent course of action by not raising this outside the presence of the jury before asking the question particularly given the circumstances of the first trial however the question really is whether his conduct is misconduct and the record is clear that he did not act in bad faith in choosing this course of action it appears from the record and there's a specific quote from mr mueller after the objection and during the colloquy in his explaining why he chose this course of action he says and this is excerpts of record fifty six and fifty seven the court ruled last time that he referring to the defendant didn't have notice it was not fair because he didn't have noticed and the balancing was off based upon that so mr mueller clearly understood that for the first ruling to be that because he didn't give notice that is what threw the balancing test off and reading the ruling in the first trial that may not have been an accurate reading of the they court ruling however that is consistent with what mr mueller did that understanding of the ruling which is that he gave written notice to mr firey and he also as was pointed out asked questions that led up to the ultimate question about the conviction produce proceed down this road and one cross the line make an objection your honor i believe that the reason that there is a notice requirement is for the very reason of allowing defense counsel to raise an objection outside the presence of the court so i don't believe that's the argument because that says if you don't move then i'm going to do my misconduct and then i won't get charged with anything and the judge will rule and we'll just go on sort of a strange posture is that if in fact it was it is a rerun your honor but i do think that that the record is clear that that there wasn't bad faith that mr millet was not intending to violate a rule he understood the rule to be that he had failed to give notice and in the second case he gave notice so he clearly believe that he was following the rule and certainly he did allow whether it's shifting the burden or not he certainly allowed the defense counsel the opportunity to to object retract your question if the judge in the first trial made a balanced assessment of probably the value of evidence versus the prejudicial effect it would have in the first trial and ruled that you had prejudicial effect to be done view of the evidence that's come in in the second trial will be done but your honor i think there is because the district court retain jurisdiction over the case certainly that balancing test can be renewed and i believe it would have been prudent for the prosecutor in this case to alert the court to this issue and ask for a reconsideration of that ruling in light of the evidence in the second  of law for all three ruling in the first place is not a lot of the case in the second case i believe that it is certainly if it is not reconsidered it would be it would be by it would be law of the case for the second case but i don't think that there it is that the prosecution or the court is prohibited from revisiting that that evidentiary question in the second case and i think here that brings my question and under what circumstances we wandered into it in this case because we sprung it during the term of the jury listening and the defense counsel is waiting for the thing to spring so who who should suffer the burden on that should have been brought up if  decided to go ahead again into this into this territory knowing what happened the last time i think that there are two there are two prongs to the answer to that question the first being whether or not the prosecutor acted in bad faith which would be  chance however he did rule the nature of the evidence in the balancing test was prejudicial so what happened in the second trial that the judge the prosecutor now going down the road was if something happened the second trial would start just will be prejudicial now honor i think that my point is that i think that the that the prosecutor may have misunderstood the fact that there were two separate problems to the first ruling which were there was no notice and it was prejudicial from from the statements that the prosecutor made and from his actions of giving notice and and the statements that he made after the abduction was raised it seems apparent that the prosecutor believes that that it was the notice that threw off the balance so by giving notice there was no longer a and i think we can agree that that was a and that was not the correct interpretation but i think that looking at that is important in trying to determine whether or not he acted in bad faith refresh my memory he said the court ruled last time that he referring to the just and did not have noticed it was not fair because he did not have noticed and the balancing was off based on that which is what the prosecutor said so his clear understanding which is borne out by his actions was that the notice was the key to the balancing test and i think that a fair reading of the judge's order that's that's incorrect but whether he was mistaken or not does not i think that if he was mistaken it certainly is not bad taste and in any event even if it were in bad taste i think in this case this error is harmless because the the government's case was very strong the court made a very clear forceful ruling struck the testimony told the jury to disregard it and actually told the jury to disregard more than what mr barbee would have actually objected to mr barb evidently was happy to let the prosecution ask up until the question where the witness said i was arrested and then but not the question about the conviction and the court told the jury to disregard any mention of his involvement in his only reason for testifying was to introduce the jury to mr t s thing tito i introduced to no two mr president that's it there was no mention that tito was involved in drug dealing it was the defendant's dyster who said that she had called on girlfriend and interspersed with all of the calls to the various drug dealers mr lopez mr torres and mr cruz it's also just discredited by the fact that the sister who is the one who raised this who said i called i called my brother and tito answered the phone in all of the months of phone records from mr program there were only two phone calls from the sister and both of those phone calls in either just before or just after there were calls to the defendant's girlfriend so unless tito was not only you know handling his drug trafficking but also having an affair or having a serious relationship with his girlfriend then the phone records simply discredited defense theory which again was raised as the phone records discredit the so called bystander well there was no evidence that tito had any involvement in drug dealing the who hung around his home and that was the extent of the evidence of tito so the defense theory was very speculative and the phone records just credit is the sister they also there was a nephew nephew so each of the witnesses who testified other than mr stiles they were all family members they all talked about telephone calls the daughter for example who this thirteen year old daughter said well law enforcement forced me to call my father on the day that they came in and claim the package there was no telephone records showing a call from the daughter's house to mr bergen so it was the defense case the defense theory really only attacked the connection the telephone records that the government had set forth that show that mr gun was connected to all of these drug packages they came in the drug dealers through phone records that was the really their only attack and the government discredited those all of their the no and you said that he is now serving in iraq i see this as myself as a former military officer with a normas admiration for anyone serving in the armed services but the government has so many advantages in these cases i understand precisely why i was almost irresistible for you to say this as a tribute to him nonetheless there's a bit of a suggestion in there that the prosecutor the patriotic stroller and so on and we would i would be more comfortable or would have been more comfortable if you had simply said no i was not the prosecutor but i'll finish what i said i did not mean this unkindly and this is only my own reaction to this i'm not trying to speaking for my colleagues on the right you're of the prosecution to raise outside the presence of the jury this issue and when the judge determined trial judge determined that the prejudicial fact was far greater than any probative value at the second trial even more so the prosecution should raise th perhaps i should have objected a little bit earlier but i thought he's being very careful not to cross the line when he did i immediately objected to that and that's the point i wanted to raise ok i think both sides for their argument next case on the argument calendar is american international specially lines insurance company versus seagate technology