good morning your honor ken miller on behalf of james trumbo our the issue that i would like to address is the second issue raised in the opening brief which is whether or not the district court abused its discretion in admitting the testimony sued on rebuttal and i think that the first place to start is that the decision was an exercise of discretion and the district court misunderstood the facts when it purported to exercise its discretion therefore you know abuse that discretion they prior to trial the court had clearly told the prosecutor that she was not precluded from using th had told the prosecutor she couldn't use it and that's why he was going to allow her to use it in revival mr trump tower was clearly prejudiced by this abuse of discretion mr matz to this testimony was honor the the district court said and the prosecutor argued your honor you told me prior to trial that i couldn't use this evidence till we got to rebuttal you excluded it from my case in chief and so when we got to the government's rebuttal case the prosecutor said your honor i'd like to get this in now you told me i couldn't use it earlier and i pointed out to the court at that point that's that was not my recollection of what happened in the court repeatedly said no i think that the prosecutor is right i think that i did preclude her from getting into this evidence in her case in chief and therefore he relied on that fact in allowing it to come in in rebuttal so that your your claim with is that when the district court excluded matzot as testimony and what the district court intended was the master of his testimony should not committed any time it was excluded from the case in chief it should not be it was going to be excluded from the rebuttal as well no your honor actually what he had said is i can't tell you that this is excluded from the case in chief i can't tell you that it's included we're just going to have to see the very the nature of the facts in this case may be searched counsel's opening statement opens the door to this evidence coming in or the evidence itself may cry out even before opening statements the evidence in this case itself may cry out for a need to fill some holes with laurel for b evidence and those that's almost exactly what the district court said but if the error that you're it had said about math student right now how can we how can we judge that as an error if the district court is in full control of whether mr mess with his testimony comes in at any time during this trial whether it's on during the government's case in chief or during it earlier misstatements to allow it to to to this evidence to come in rebuttal and at this time the court was balancing the equities it was exercising its discretion my position then my position now was that we hadn't opened any doors we didn't put in on anything you know in our case that would have allowed for this rebuttal so that the judge is balancing that and he's saying look you knew that that the government wanted offer patrick match to that and you knew that i precluded the government from offering patrick met sudar so when i balance all out i'm going to exercise my discretion and let this and the reason that was so key once because i had foregone a witness in my case in chief named a laura shell hammer who would have would have been very a ride down to orange county to a place where they had these horse shows and they put on these things once she testified that was going to lay the foundation for innocent presence or mistake that trump tower was down the say this wasn't any mere presence you're a drug dealer and that's what you were dealing doing down there have i put on tiller's show hammer i understand i do believe that i think reasonably that patrick met through this testimony would have come in and  wouldn't be no position to argue about it now so i cast out the laura shell hammer and so was in with the district court did by real line on its earlier but by relying on a mistake was changed the rules of the game midstream change and i apologize for calling it a game but there are there are rules the government puts on its case i address that in whatever whatever i raise they get to put on in rebuttal by allowing the government to call somebody from their rebuttal from from their case  chief in rebuttal they completely changed the mix of what was going on out of how we were we were preparing for trial that's why after the court did that were how we were conducting the trial that's why after the court did that i said ok you want to but now i would like the fact that if the if a court exercises its discretion and it bases that exercise of discretion on a mistake of material fact and this was a material fact then that court necessarily abuse that discretion we were injured hearing where matthews testimony was extensively discussed the court discussed and also the parties discussed bringing that testimony in on rebuttal the court ruled ultimately after an extensive discussion and this is in government's excerpts of record one fourteen and it's page fifty two of the transcript and eighth that i quote why i don't think that i can grant the motion that says you can use it because it's because the court  know how the facts would come out but i don't think i can grant a motion saying you can't use it so in essence at that stage the court was waiting to see what evidence comes about during the trial to determine whether or not matt suit his testimony can extensive discussion that this could and probably would come in on rebuttal and that the nature of this case was that that it was unavoidable that the defendant had to make an argument that there was a mistake defendant open the door by arguing it was an argument by implication first off one of the witnesses heidi weren't with an investigator she had testified mr trump our was first spotted by an agent playing ok back to what we were discussing your honor that he he mr trump are was indeed arrested in a brand new chevy truck with paper plates and the defense investigator testified that there were many about eight car dealerships around that area and that she had gone to where the defendant was arrested and parked there and she could not see down a zillion street which is a straight shot due to wild did extensive research at the time that it was trying to determine whether or not matt soulas testimony would come in and the court read through a number of cases and said that in this category mistake is very broad it's never been no it's not your honor the court in december eighth hearing was on what's on its mind in terms of the discussion was i'm going to try to be cautious here i'm going to basically imply greatly or assume greatly that it's anything we're going to be cautious when it comes in on rebuttal and the court was uncertain at the time that basically the court had stated subsequently as it had stayed there that the court was trying to be cautious the implication that the court was going to be cautious and proper and if the government were to admit it that in that rebuttal would be the better time to admit it i don't think you understand my question i'm talking about the ninety nine to one fourteen or is that a different part of the transcript that is definitely a different part of the transcript you're on are the ninety nine for one fourteen is the pretrial hearing that part was right before admission  with an issue i think was probably correct but i have i have a feeling after viewing the case these cases that have a court ruled the other way and said that it could be admissible in part by the government's case in chief i don't think next line which is since i think the court in abundance of caution made the ruling that it did and i think it's doubly at issue is the result of the defense evidence presented in various ways throughout the course of the case so i believe that the court was probably under the impression that i'm if this is not as equivocal as response please let me know but in terms of the discussion it was a very long discussion where they discussed at length the evidence coming in on rebuttal and at the end the court ruled know i'm not saying that it can't come in i'm not saying that it can't come in and i'm saying let's wait and see you know yes or no excuse me yes or no juries very well understand if you've done crimes in the past you're likely to do them again it was hard but if it's also highly damaging it's also exactly what the rule says we cannot we cannot indications that it was that there's a there's a strong inference of identity here that in this case it becomes prominent that he feels that it's home and laurel canyon previously m same modus operandi that he uses before and that he uses it again and also that he just simply not there for an innocent purpose i would say that there's other strong evidence indicating that it was it was identity in here and there's a claim that you've got the wrong person you've got that you don't have the wrong person because this guy's a criminal and you know we all know the criminals do it again and therefore have the chances that he was there that was a mistake  material with respect to knowledge and intent on the conspiracy charges that another argument that could be made here yes you're on it is another argument and it indeed is material element or number of material elements the government has to prove to prove the crime and get the conviction hung up of knowledge is that he knows how a drug deals is conducted he knows that the source states far from the broker and the broker sells the drugs while the source rove is around and