which is offered to counter the government's argument that a joke probably turn off the recording device during the control delivery of the suitcase at dunkin donuts in december two thousand and seven district court hold court conviction and the alleged manipulation and turning off of the recording device during the december control delivery is one of the three they rely upon and i go i don't like later on in the summation to discuss it so lynch could you help me out i understand the government's position they're arguing that there was no technological competence necessary that what mr gonzalez was told was don't take this out of your pocket leave it there and it'll just run and instead he's observed to take it out of his pocket and do something with it now whether you need to be a wizard or just somebody who pushes an off button to turn it off at that point why does why does that matter if the instruction was and again that's why i'm asking for help in my mis understanding the record is it not true that what his role these are the technology was was to sit there quietly with a cell phone in his pocket and he didn't do it the evidence in the record your honor supports the fact that he was actually instructed apparently to is how you got to be talking to walter and tell all their blank blank and blank and so the notion that he was just going to have to sit there with a phone in his pocket when he also needed to be using his phone to be communicating with walter those two are inconsistent and frankly from a perspective explain why he was having to deal with this fall and i as young as are aware the government makes the point that well this was a different application than the one that he was human community before man don't show up at the meet you know next the easiest thing to do but here that isn't what happened he participated in all the steps and frankly we think the truth is he didn't understand his phone and he doesn't understand how to do it and the government  as i understand it and again correct me if i'm wrong i didn't think this was evidence that oh his passport shows three prior trips this was testimony by the cooperating witness that on three prior trips that was true for the whole scheme not for just this one occasion isn't that what the testimony was yes you know so i'm not i'm not seeing that this is enormously valuable evidence for the government because it's but i also don't see how it's prejudicial really because it's all the same witnesses credibility if the jury believes that joel eureka is telling the truth then it convict if it thinks he's lying then the fact that he evidence of intent of his knowledge in the sense that they would never trust the strips to somebody who wasn't taking it seriously and getting paid for it and and knowing why it was why it was done i mean  doesn't that chip on the scale the tending to prove knowledge on his part that's my st question and the nd is why is this for real for pete isn't this all part of the same conspiracy and it's all part of the same conspiracy that it's not a prior you said the same thing you said at trial and and that was not true why doesn't that cover that i mean whether he did or didn't tell the truth is not something that i'm in a position to of whether additional inquiry should be made by the judge at the sentencing in terms of whether they got factual findings whether but i see this very broad statement in terms of denied everything that was fairly obvious i don't know what the judge is referring to either all you have is the application placed on his phone to the control delivery your honour's i think it's important to note that the trial court held that on relevance grounds and miss and because it would be misleading because obviously those witnesses had no knowledge of the recording application whatsoever they were not at the control of delivery and most importantly the as as runners noted the instructions were in spanish and in english three separate times to leave the phone and his pocket but aside from that as we note in our brief the the ability to turn the application off is actually could be a sign of technological sophistication as we noted to turn the application off you would have to take your phone out he would have had to open up the application the recording application itself he would have had to select the specific call that was recording and then he would have to click and the call and then exit the application so a number of steps that that he had to take in order to do that that's what we are you to trial and that's that's we believe what the jury found as well just given the number of steps and given the number of times that the agents who had to risk the operation and their safety three times to tell him to come over to where he was sitting and tell him do not touch your phone do not access the application and three times he continued to turn off the application we felt that and the jury felt obviously that was fairly clear that what he was doing was purposeful this was not a one time thing where you could chalk up to an accident even then he would have to go on the application and turn it off this was three times that the law enforcement officers had to get up out of their positions come to him take the phone restart the application instruct him again in english and in spanish where he affirms that he understood and the way we know he understood not only did he tell the agent this but the defendant himself testified about his mental state and his understanding of the application now the government exhibit ninety seven dollars we know that he testified that he he understood the application he understood the instruction and he understood that he was not to touch it and so any testimony from from was there any was he under constant surveillance yes he was on was there any effort on his part to make a phone call during that period of time no your honor  the as as the and the record shows he he was you know what they saw they never saw him pick up the phone and put it to his ear the last time they actually just saw him get up and walk out of the dunkin donuts to which the law enforcement agents ran out after him and told him to get back inside and so there was no there was no seeing of a phone call they saw the st time with him to get on with the phone and then immediately upon that day they heard the audio cut out and thus they they went timing in the meeting and so forth and therefore that's why the phone was turned off you didn't turn the back on again for some reason or honor yes and you know these operations are  conducted with immense planning and so the time and the place of the meeting was set a date before and then again the morning of they arrived at and this is all brought out in testimony especially the fraser they met at the local police department where they confirmed the time place of the appointment with walter so precisely for that reason for that he would not have to to take out his phone and make any phone calls and that he could he could abide by the instructions that he very clearly understood again the defendant the appellant himself testified that he understood and to his mental state and so again we believe that any testimony the trial for properly precluded any testimony from individuals who had no knowledge of this argued both on for or be and direct evidence grounds that this information should come in because mr joelle you are like a he had we argued had direct knowledge of these prior trips again because both the leader of the conspiracy honour's the government will just touch on the safety valve issue you know i won't i won't beat a dead horse but yes judge judge class or below did find that the defendant testified inconsistent and of this with regard to your question judge walker in terms of whether there's evidence that he actually received a call while sitting at the condone i agree with the government that there is not but i am looking at transcript pages three donuts but no i'm page three people he only testified that he was to signal when well he was a signal after all to call and so if there's no evidence that that actually did happen as opposed to that that was something that conceivably could happen i'm not sure how that goes to explaining why he would handle the phone my application is that if you're holding us all