this you know something you guys that like to address i just one of the issues raised in the briefs with respect to the closing arguments specifically the argument by government counsel that everyone involved in a  drug trafficking organization necessarily has knowledge of the presence of the marijuana that argument is set out on pages five zero four to five zero five of the export of records the first time that the prosecutor made that argument the or similar arguments there was a sustained objection but then when he got to the specifics where you draw an inference of knowledge from the defendant's suppose of participation in this drug smuggling organization that and th inference of drop of knowledge necessarily comes from that the objection was then overruled and the power cuter were you focusing because the defense was that at least two of these folks were the actual people who put the marijuana in that's correct usually the defendant was arguing that they knew it was marijuana right that they knew and these are so everyone in the chain of events whether it was these two guys or anyone else moves with marijuana that's what you're same argument after the objection was overruled is repeated everyone in this chain of events whether it was these two guys or anyone else knows it's marijuana and basically what that is is it's an it's an argument that everybody who's a participant in the organization necessarily knows now this argument is improper for two reasons number one it clearly implies to the jury that the prosecutor has knowledge regarding drug trafficking organizations and the fact that everyone involved in them has knowledge that was never presented a trial so effect in fact he's testifying himself in his rebuttal closing argument when the defense says no opportunity to respond and he's effectively testifying to the characteristics of this drug trafficking organization the second reason that this argument is improper is that this argument is effectively the same thing as the structure type testimony that this court has repeatedly held this inadmissible in trials effectively identical to these as you know says that those cases i s her defense was a lack of knowledge right and the good office of the government is entitled to respond to that defense and argue inferences from the facts but what's happening here is something beyond that he's not saying that it's on a reasonable for her not to know that for whatever reason what he's saying chain of the fence whether it was these two guys for anyone else knows it's marijuana so he's talking about everybody so it really is precisely the same type of argument that this court just approved of it in the very structure cases it's not an argument that upon these facts based upon the fact that you know there's not very much gas in the car based on the fact that you know some of her statements were inconsistent that therefore she had knowledge of what he's telling the jury is i have knowledge regarding how drug trafficking organizations  what i'm telling you is that everyone that's in them knows that's why they use the you know what beyond that one represent everyone in this chain of events whether these two guys or anyone else knows it's marijuana what beyond does the structure type of argument in your view creep into the argument i think on page five of for the last sentence the property at the objection that was overruled is and whether they sell it themselves or they give it  to someone else and that person is going to know it's marijuana and again that is the structure type argument and the person they gave it to is my client and so what he's saying is that everyone involved knows and the person that they give it to else s facts in this case it's from the fact that everybody knows and then he makes if there's any doubt about it at all he makes it perfectly clear in his very next sentence which he says everyone in this chain of events is going to know so he's referring to the organization itself so and you have to decide whether or not all these people knew you have to decide whether or not she knew well i still think that he can't come out and say everyone knew because that is their structure type testimony that's something that the jury wouldn't have any basis of knowing because the defense went to the evidence and say right that he can say you know from your statements from those the circumstances whatever you can draw an inference of knowledge as to this particular defendant but you can't say everyone involved the organization knows therefore she knew and that's precisely what the argument was you know beyond those two i'm sorry there was a lot more in this case than just evidence of what i agree with you that that that's a very significant issue in the case but it's also really a swearing contest that the jury is entitled to evaluate without having this sort of extraneous outside of the record argument put into it and i point out that it's a close enough issue that in fact this case originally resulted in a hung jury the first time that it was tried so you have the defendant who has an account and she denies making a lot of these inconsistent statements you have an agent who interviewed her in spanish she didn't tape record or otherwise make any sort of actual record and he says that  did make these various statements so it really is it's you know him versus her it's a close enough question that the jury hung the first time now the government's response to that is to say well we had this guy david rowe who came in and testified and undercut her account of what happened at the night club but that guy is a felon he's on felony probation and if he admitted having gone to t quanah then he would have been in violation of his probation so i really don't think that that really pushes the the the needle so far over into the government's side so i have we have a case that's close enough that it hung the first time this argument is made at a key point in the closing argument it's the only time where the government says look even if she's tough in the trees she's still guilty because of these various arguments it's in the rebuttal closing it's specific it's set apart from the rest of their arguments and it goes to really the heart of the case which is knowledge the government in its closing argument admitted that the key issue in the case was knowledge that's page four fifty one of the expert of record so they know that knowledge is the is the issue but you know the make of the fact that he you know the prosecutor goes on to argue that some lie as to why they must have told or in other words you went after the part you're quoting so they must these guys obviously knew they must have told or in argues all of that if it was those arguments are problematic do we look at the context than try and understand what the prosecutor was referring to or you think there's enough just in the wording of what was that that's clearly structure argument i think it's clearly structure i think that you do have to context that's what the invited response case is to say and i think the most recently from this court is the weatherstone case that talks about that but invited response doesn't allow improper argument this argument is improper because it infers knowledge of structure on the part of the prosecutor that was never presented and if they had tried to offer it would explain your argument let me just ask you your time has expired but if we disagree with you do good morning my name's larry spong represent the united states in this case it's not the government it was defense counsel who first talk about structure in this case it's defense counsel who clearly invited this argument on page just for ninety five ninety seven in the record on the in the excerpts of record she talks about how and their tone knew jose luis suarez knew and set her up then goes on to posit imaginary people an imaginary structure because she has to explain how would they get the marijuana if there's only three gallons of gas in that van so she posits well there probably were going to be some people who would stop her and ask her are you having trouble and that way they could get it look offloaded so she's the one who brings up a structure of an organization she's the one who brings up that in fact everybody else knew and it's in response to that and only that in which the government made that comment now it's important to see the whole context first of all before closing argument the judge in her where you are in the transcript oh i'm sorry pages for i think it's begins around bottom of four ninety four through four ninety seven and he acts like the problem is those clearly i have forty nine forty nine and so i'm having to count backwards so just tell me what ok what is that for ninety what if it's i don't have that because this is in the appellant excerpts of record not the government supplemental access i'm sorry but just tell me what the pages are than four nine o'clock out backwards from the one i can read well actually for ninety five or ninety five i think i understand more importantly this is not testimony this is an inference to be drawn from the evidence that exists that's what defense counsel did when she went ahead in a positive positive this imaginary structure and then drew an inference saying this person was set up certainly it's appropriate response for the government them to say well let's look at this that you have you positive now and see what really the inference of the proper inference is and that's what this is it's not testimony it's not this is sort of a form of evidence as opposed to what first of all the defendant can't counsel an investigator did you the cell phones three weeks after the arrest that was on may thirteenth and you can find that in the testimony of the first trial in the supplemental excerpts of record of page one sixty two and in the testimony of the second trial the second no expert that sort of records since ninety five so they did have the opportunity to see the cell phones now the  evidence that there actually had been written down came up during the first trial the defense counsel even made mention of it in her closing argument at the first trial so they were certainly aware of it they did make no request for that evidence that evidence was then finally turned over right before the trial so so first of all it wasn't suppressed prior to the second trial it was made available but more importantly it's clear why there was no request at the first trial defense the defendant testified she went to meet david rowe to enter into a contract with him now of course that was the first mention of mr david hollow out of the defendant's mouth in time for the second trial now oh and she also testified that she called david rowe when she got to the nightclub because she had a previous arrangement so if she called him his number would be on that cell phone well now prior to the second trial guess who government finds a week before trial david rohl now for the first time defense counsel complained that those numbers aren't turned over why because david rohl whole is going to blow apart the defendant story he's going to say she wasn't here and all of that and of course that list would have  that if it had come to the government's attention and seen that so the question is if it's looking for the sake of argument that this is grade material let's assume that i i doubt it myself indeed impeachment evidence it's it's a violation whether it's good or they argue that the last or whatever of the cell phones was a young blood but they've already seen the cell phones and they can seem them on may thirteenth three weeks after yes there were there is testimony that agent the domino found ten numbers four of which you know the words there's ten calls but only four numbers some of them were repeated and then he went in tried to find who those people were one of them came back they couldn't find the other three they could ok but but the bottom line is none of them were david robles number and that's that's then i think it's because here's the important part they're now ok thank you