cannot be used against but deja and constitutes reversible error was such an instruction contemporaneously requesting it was never requested and we have argued problem but to say that she specifically the new to her original motion where it was extensively argued that it shouldn't be allowed was not done right testimony the confession presented in such a way that the jury would clearly understand that there was a reference to mr padilla and there were those kind of specific objection the the redaction was a worthless redaction because of the manner in which testifying about her now and this confession if you look at her the wreck testimony she who was a government witness she mentioned come onto as having been identified by nando's who also testified she also mentioned to her some general who also testified so by the way she fashioned her developed where the jury clearly knew that she was making reference to but the guy larson what makes matters worse is that in closing argument she link the there were no there were no object contemporaneous objections to that closing argument is not correct that is correct and i have argued that it was plain error because a although although she had a case law states and that's why i think that that should not count constitute a waiver he be prosecutor specifically when it is told how he took her to the which is what she said she said he would go who live there and you know the participation of the you know andrew marr so again we have a situation where the  conflicted evidence you honor that it could have gone either way well certainly there was evidence on both sides of the fence but what i submit was the killing blow was  that she's scared was scared is the steerer type argument that the government always raises when they have a problem with a with a witness your honor if she was scared when she was alone with the f b i what made her unscared testifying in trial in fun of by the young our son and pointing directly at him and saying this is the st time and i'm making him a participant in this case the trial so again it's the government that has the burden to say that it was harmless beyond a reasonable doubt and quite frankly i  once error certainly the amount of testimony and the way it was presented clearly implicated a car saw and powerfully incriminating as occurred in this case the other case cited celestin dared a judge gave the instruction which clearly is the stinker she will from this case so what we have is a clear violation of this court's precedents and group and again with the sort of conflicting evidence that existed on both sides of the fence i think that there's a real two assistants and participate in his own the fins the district court here granted that motion the day after it was found by the government if you re that motion i lying you may not speak for judges when they are asking you questions i just had a question for you you will stop and listen to those questions respect to the need for more time to review the jencks material and your response that at that counsel should have made the time i should have gotten it done that doesn't go to  your invalidity of protect the warden that goes to your claim of ineffective assistance of counsel in my career well i agreed that it does go to that but she also made a request that he be allowed to receive the janks which was doing nothing on a protective warded had no grounds your honor he did cooperating witnesses were known i mean if you if you put this in context once think that's a fine why didn't the judge get the drinks to him they were already known de only effect of not giving him to jenks is preventing him from being able to assist in his own  him and his constance complaints should have alerted to court that the remedy he was providing was ineffective because there was no relationship she even requested that she be removed from the case because there was a complete lack of trust how under these circumstances can it be said that there was an abuse of discretion when the court denied grilling him the jencks under those circumstances as a distraction and another scene or a decoder device was placed as a distraction and it is not accurate to suggest that all the players involved were specifically identified during trial as a matter of fact miguel torres one of the government's cooperators is that if we testified that he was aware that people participated that he couldn't identify  the scheme these crimes be all right those beyond those that the jury knew but in terms of other individuals co defendants witnesses whatever all those no name individual name it could only be mr putin so how do you respond to that argument your honor i would respectfully disagree with the promise of your question om the jury was actually to mr body up for example mr hernandez admitted that he went to party city something that mr by the also admitted he did and something that the videos clearly showed mr hernandez admitted that he went to home  also testified that he went to home people to buy that to buy gloves a couple days before the bank robbery specifically for days before the bank robbery and that's also something that the videos that cooperating witnesses testified he testified that yes he had meeting than mr hernandez is helps along with mr hardy here and that they discussed a bank robbery so sure i would i would certainly i think it's i don't think it it takes a rocket scientist to figure out perhaps that that mr hernandez is statement this this claim is actually way and here's why i understand that in the moline of decision this court held that when a motion to sever is filed pretrial that under those circumstances a burden issue is preserved here however the motion to sever was granted on the assumption that the government was going to play the six hour big deal of mr hernandez is recorded statement to f b i agents at the at the at a pretrial conference the government made a representation to the what up my point is that at trial there was no objection so it is an objection had actually been raised that trial and perhaps the brute enrich the broon claim i would agree would be preserved however the what what counsel stated at this pretrial conference was perfect your honor we have no objection as long as and then she didn't complete her thought but i think if you read it in context  the context in which it should be read is as long as the statement is redacted and i should mention none of that throughout this the testimony of a gentile idea throughout her testimony regarding mr hernandez's statement no objections were raised on brewton grounds counsel for mr by the at one point requested a sidebar government proceeded there came a point when i supposed the government asked one leading question to many that then mr hernandez's lawyer raised a leading object and he even protest so we would argue that this issue was it was raised it was intentionally abandoned relinquished the proposal that the government of the government's  to the concerns about the failure of reconstruction does it extend to the way in which the closing argument was made by the government are you saying that those as opposed to those being played you're arguing that those objections were what are that's that's not that's not the argument we that's certainly not the argument that we made in our in our brief or to happen but it's remaining i'm sorry you have four and a half minutes remaining i think you were beginning to respond no that's not quite the argument we were making as to the instructions and as to closing ok thank you one just know that the argument as to that i what we argue in our briefs is that claim error applies to that i mean i think the court has to keep in mind this is a trial with a very of the post a lot of challenges to the district judge this was a very difficult defendant a very difficult trial to manage the the we recognized in our brief that that instruction should have been given however we would submit that the defendant certainly has not met the rd and th problems of their review because the evidence in this case quite frankly was was overwhelming we had to cooperators who directly implicated mr body yet we have felt like placing mr island of the bank during the time of the robbery and the date of the robbery we have excuse me we have whole records is them pushing patterns of communication toyota tercel that that getaway car was his arm and that he drove it the morning of the robbery he and he admitted at trial to his own testimony that he he admitted that he never told the agents that marshal when he was st interviewed on the date of his arrest which is something different from what he testified at trial so quite frankly is a repeat offender who is facing a lengthy term of imprisonment and with reading case law in our in our in our submission to the district court as to the propriety of the protective order at the when counsel permits before they requested that that protective order be lifted the government made a profit that the government had two potential witnesses who it intended to possibly  briefly your honor as to the last statement what the government fails to tell the court is that they admitted that they had absolutely no evidence that those students that appeared to those other witnesses had any connection to buddy  had previously been convicted and there was no evidence he had ever threatened anyone the only reason advance was that he was facing a lengthy prison term again we want to emphasize the importance and we consider that  lack of an instruction is separate in a issue that can be reviewed on the plane error and that the government's argument by only its own the supreme court's previous cases and this court's in richardson in richardson the supreme court stated specifically that of limiting instruction that the jury is not to consider the confession  court again it always specifically found plain error in the failure to give the instruction so here we not only have a direct implication which would make the live him going to party city there was testimony by come on to a codefendant empathy job explaining give an innocent explanations as to what he did to sell had been sold and direct to nations that had left his tools in the car and he was trying to recover them so there was there was conflict of evidence on both sides and to say your honor that under those mistake and if you look at all of the circumstances of this case it can not be said that the government's case was overwhelming but that there was an explanation for every ver thank you off that action clits argument case attorney castro an attorney you should disconnect from the hearing at this time