though the prosecutor was not using violence against them because he wasn't silent to talk and it's problem was that the story he told the cop immediately upon being apprehended just different from the story he told later you looking at that the government did ask my client a few statements one was that if i know the gun was in there i would have let you search in the second one was i'm not going to rat out anybody else about where i got what those are the two statements he made in the prosecution cross examined him about th the first time you told anybody under trial here in front of this jury so he's not asking him about you know what was the context of this you told a different story before rather than you never told the story wouldn't have authorized the search or whatever so why isn't this pointing that out well questioning just in the category of like impeaching him with his prior inconsistent statements there's nothing wrong with them five starting on line for this is that question by the prosecution the siebert by the way let me ask you something after your placed under arrest on the on the tenth did a detective come to see you in jail mind you there's there's no way that this could not have been after he read in everything is ok at the time of arrest that's of prostate and what is ok is for them to cross examine him about you made the statement didn't you you step he said that well there's the speed or whether he said if i remembered that the gun was in the car as opposed to if i knew my the terry version of events to the police ok let me get back to my question because you gave me kind of an if he answered it and it's sounds like you don't mean to be iffy you're just trying not to give away anything but in the process of not giving away anything you're leaving me w an ambiguous position that i can't understand ok i want to know are you challenging the use of what he said and didn't say at the time that he was arrested or only at the time the detective man interviewed by the police or interviewed by the police just once and instead of being silent he says i didn't do it another guy did it john doe right and then at trial he said this i did it but i was coerced by another individual richard rowe and the police say why didn't you tell this story before perfectly legitimate which intimate degree right exactly and in my in the arse and you'll see i'm p seventy eight the prosecution does that they ask him about his statement on why not he made the statement about how you want to write anybody else that you made that statement didn't you are you saying something different here today there's nothing wrong with it that's perfectly promise what i have problems with are these questions that are asking the jury to draw an adverse in first from the fact that he remained silent that he didn't give a complete narrative to the police which is somewhat odd because whether it's the government saying here that my client utterances of innocence because the record here only shows two questions and two statements one question was about the gun that they pull out of his car when my client said if i'd known that was in there i would have let you search and the second question is when i asked him whether the guns are stolen and he said i'm not going to write a body else i wish to remain silent and if somehow any questions about that was permissible anything else is not somehow i thought when i read the brief that what we're talking about here was referring to him at the time of his a well here's an example of a question doesn't feel the gel that i think is improper and this is the question on page seventy four when the prosecutor asked in fact a story about a dispute this is the first time you've told anybody at your trial his right to remain silent after they asked him whether the welcome stone he was never asked any questions that would have given him an opportunity to give a complete narrative because you both is right to remain silent and that question good morning here in the hood is my name i work the united states attorney's office in las vegas nevada i want to address two general points and i'll get directly to the post arrest silence argument the first point is at the time of the there was not one objection on behalf of the defense there was no side barred regarding this issue and nothing was ever expressed outside the presence of the jury if i could pence counsel regarding these supposed questions the second point i'd like to make is the evidence in this case was absolutely overwhelming the jury was out a short period of time the victim stated earlier the defendant had a gun he was there at the scene identified the defendant as the person that had threatened him earlier and mention the gun we have a nine one one tape that's consistent with all the law enforcement officers testimony we never even get to any of this further we if we just pay attention to your p that it's not your argument that it's not playing or whether it's fair or not that's correct your honor you never know when a defendant is letting something objectionable come in if you're the crowd heard that's correct and i have some tactical use they're planning to make of it later that's correct your honor let me get specifically to the post arrest silence i think the timeline is actually important here there's a link the period of time that happens from the time these officers put sergeant slattery arrive there at the scene they arrive there at the scene they shine a light in the car they walk up to the car they make the stem in the front step out of the vehicle they pat him down for weapons at the front of the car they find his i d they stop right there and go to a computer and run his id and find out he's a felon before they go back to the defendant they go over the victim is right there at the scene mr elias he indicates right there that's the person i saw earlier that's the person that had said he had a gun and so time is going on here right now at no time does the funding ever spontaneously say anything to officer slattery who's with him and again he's not under arrest but there's a period of time going on here what happens next before they think anything about it i mean why should be spontaneous they say anything an d that goes to the commenting on the fact that he didn't say anything well there's a period of time here when someone's times a gun in your vehicle or bullets or a victim shows up at the scene and points to this individual you would think that you would want to that and they can't use your silence against you your honor i would simply point out there was a period of time there when you have a victim there at the scene you have weapons being found and there's a period after the weapon is found in you were wrong i mean yeah you got a great opportunity to tell the police your story when they first catch you but you don't have to when they can't comment on their silence but up what i'm talking about is after miranda rights are read and he waves those and agrees to talk to police at that time that period of time when the gun has been found this one is his opportunity to explain fully to the jury what happened here and he never did that in all of my questions that were asked of this particular defendant when he was on the stand related to that period of time that window of opportunity was there a separate period of time when a detective came over and talked to him in the jail and he said i'm not going to coffee either the next day your honor a day after that the detective went to the jail and miranda period that window of time when he waived miranda rights your honor i mean that would be the issue here but but every one of the questions that the prosecutor asked in that window of time related to that period when the government believe the jury should  the defendant's explanation a time in this whole story that he told for the first time that was never backed up by any evidence by any defense witness or anybody else that story was told could have been told in that window period to both officer slattery and miranda period until you invoke i think it is permissible to comment on that period of time between well if you look at the cases that are in our brief your honor i believe that there's nothing exactly on point with that but the fact that that's what he did here your honor and if you look there was no other questions by the officers that's why after that period of time and there was definitely a window of time here where he had an opportunity that he didn't do that your honor i think the records clear on that and we simply point out the in york any objection either during the testimony or at the time of closing argument so that prosecutors questions or the prosecutors allusions to the silence absolutely not your honor and there was no sidebars requested there was no proposed jury instructions on behalf of the fence never was it ever raised  family and in that case they set up a three part test to look at whether it impacts any substantial rights which is the number of questions whether it was argued there in closing and he argued at three times or there prior inconsistent statements in that  exactly addressing the issue that i'm giving you a chance that i'm taking your over your time giving you a chance to address the issue that's bothering me so i would suggest if you have a way to address it head on in the light at the about that again that's fine that's on page seventy eight those two questions were asked those are not part of the eighteen questions that we are alleging violate oil here there's eighteen questions here that transcend the constitutional limits and three times it's emphasized to the jury  and i would think chief if there were subjects and i'm going to sustain it but there was no objection so i didn't do anything because i thought well defense counsel knows the case better and i do there may be some tactic here something else that's going to come out a some evidence i don't know about and the defense is letting this come in on purpose letting the prosecutor walk into it and that you know i don't want to try to case for him because he might not win it and i don't absolute right under the confrontation clause to keep out a lot of testimony which you let in bank robbery very often things get pretty sloppy about the confrontation clause and the hearsay rule on the proof that the bank is federally insured institution and the defense purposely left that in just so that the jury doesn't get all tied up in this side issue that the defense is going to lose on just because there's the right does that mean that the judge  starts trying the case for the defense lawyer and the planer standard is not insulate the air it does make it more difficult for us to prevail and the best response is if you look at the factors this court has articulated for when we apply plane error to well air that we meet the parameters and this is an isolated incident this is pervasive air the prosecutor should have known better than the new this is well established law that's been around for almost thirty years that should have happened completely deprive siebert of his right to a fair trial because