found in the home that should have been suppressed as well the fact that he was there would not have been known had there not been an artless entry and although mister stossel spinozza rest is not invalidated i n terms of how this is from mister cruz's point of view mister stussy is physical evidence that was introduced against him at trial his plea agreement should have been voided his clicheed have been vacated but counsel who did a spectacular job a trial did not take the time to move to vacate that plane because in the st trial the all hundreds related to this helicopter shooting had been suppressed and that evidence was not so prejudicial in terms of this this trial the most it never got vacate it no it did not you're absolutely true but the plea agreement itself was t to related to something that should have been suppressed no i don't think it's right for us to let this thing go we don't want to come back on an ineffective assistance of counsel claim because he didn't move to vacate prior to trial because the fact is  the worst evidence against mister cruz everything else was cooperator testimony there was no physical evidence against him but the evidence that he had harbored this fugitive was not only introduced but it was driven home by the government and i'm like the st trial it was discussed during the during the opening it was hammered home during during testimony of the cooperators and then during the which was not only suppressed but rejected from his plea agreement he said i wanted i was trying to get him to surrender and i was trying to get him a lawyer so not only was this evidence that should have been excluded used it was misused bernard yes your honor that's absolutely true so once once you decide well i've got these i could have a suppressed or not but i'm not going to i'm going to confess to it and admit isn't that confession itself something that can be used it's certainly computerized put into prison it's the thing that put chris in error but if it is something that should rightly have put him in prison for harboring but he's doing a life sentence on the basis of this evidence which was the most prejudicial against them and it was i'm doing prejudicial because it was misused it was until encourage additional because it was really the only evidence his own statements your  want to address the issue of the failure to give a rosemont instruction because the rosemont instruction is requires that a person who is convicted of aiding and abetting in a murder by firearm or by weapon must know in the bands that a weapon is going to be used that instruction was not given in this particular case there is contradictory evidence as to what he knew was going to happen there was the evidence he had advance knowledge that there was going to be a murder was contradictory and in our opinion insufficient figaro  claimed that cruz was at the meeting planning the murder but del domi who was really the star witness said cruz was not at the meeting he said he went to cruz's residence to get a vehicle and a license plate but he did not say that cruise was told why they needed it so gummy in fact testified that the extraction team which the other witness said mister cruise was part of dummy said the pigs traction team was himself peter paul and costello court instructed the jury that they had to determine where the cruise consciously share the other person's knowledge of the underlying criminal act and i believe ak a sly suggested that that's the court must instruct the jury that the defendant actively participated in the underlying violent crime with the best knowledge that a confederate would use or carry a gun during the crimes commission and this is in  the standard requirement that the government prove a person is liable under eighteen u s c section two for aiding and abetting if he takes an affirmative act in furtherance with tens of facilitating the offenses commission so that's standard struction under rose man is not sufficient that there has to be an instruction that you must know in advance that a gun is going to be carried by confederate there is not real evidence of that and yes the evidence of that particular portion of the instruction that should have give been given we don't believe that a jury would have found that the government had proven beyond a reasonable doubt that mister cruz had question even if you think consciously sharing is not the same as rosemont requires because it doesn't express lee say that you need to share it beforehand it is a differen so small that you really have a problem on plane air you know you're on it because the error is playing because the we need to get this instruction that an entire other element that has to be proven beyond a reasonable doubt and that was not done here so the error is plain and it affected the outcome it the fact that a supreme court the supreme court ruled that a certain structure had to be given and it was not that to me that is a claim error going to affect the defendant substantial rights yes your honor i believe it did because that the jury had to debate that issue and if cancel had requested that instruction counsel would probably have focused on the fact that the witnesses were all over the map on what he knew in advance of the murder thank you you reserve some time you will he explained in the government's note in the government's indictment was that members of the enterprise provided shelter and protection to known fugitive members in order to aid against their apprehension by law taint it was involuntary statement after three months that passed from the illegal search having given him the opportunity to to ready to to discuss the matter with makes an issue about the fact that but for the illegal search he will not have to invest that may be true but the law doesn't require a complete break it just needs to be suppression motions filed in that harboring case based on that alone as for relatedly and in terms of the aiding and abetting i wouldn't mention also briefly he mention jail letter with the citation to the case no argument goals they have to abide by the same rules share the hand gesture they are participated in not only the truck trafficking but the criminal acts and they pulled it resources and manpower the government for example and therefore there was no evidence that these were separate distinct conspiracy but rather one overarching conspiracy if your are that no more questions himself fire the gun the court there said that those claims were not raised below and they see no reason to this i did the st instance whether or not this is a hear we do not know whether the supreme court would sooner or rosemont the failure to give a rosemont instruction and harmless error that remains undecided your honour's with regard and i apologize for speaking  but i have limited time here with regard to the confession the clear agreement it is also known as a but for analysis because there should not have been a charge to begin with but for the illegal entry this man would not have been found in mister cruise's home mister cruz would not make post arrest statements he wouldn't have been charged he would not have signed a plea agreement he would not have pled guilty there was no two probable cause as this cour practice ition your honor i have to say that i have yet found yet to find a situation in which a person pled guilty to an offense an evidence that was subsequently suppressed i have absolute and i have research honor i put effort into it i have found no case on point in either direction under these factual circumstances only suppose after the or after the arrest of six months later he told a friend that he'd been was the friend says i hear you got arrested what they arrest you for harboring bernard they would have had that conversation but for the arrest is still saying it would be squashed on a statement to another person is very different to a friend or a colleague is very different from a court statement it is presumably much more reliable thought through in advance done with the assistance of counsel why would we allow in one and not the other because one is based upon the existence of an illegal search and the other is simply a statement based upon a question by somebody not acting enough to official capacity if somebody said to my client were you what were you arrested for harboring bernard that's not even really a confession that's the charge this was a confession based on a charge that shouldn't exist now there in the poison tree they can tell you ation doctrine is about the causal relationship between the unconstitutional act and the discovery of the evidence the discovery the evidence discovered was