questions to the other part of the re man which we would like in the government opposed which is for a new trial there were three troubling things that happened at the trial in our view and it had to do think there's a disagreement as to how important that testimony was his testimony was the key in the case of mr floor and i was charged with a conspiracy and an attempt to possess narcotics and when he was arrested police officers had no idea who he was they didn't know about his involvement prior to the arrest the only explanation of the conspiracy the relationship he had with jose and the other person involve caesar was explained by jose at trial didn't wasn't in the police observed mr floor annoyed dumping the two hundred thousand dollars into the seller's car they did that's right and so that some evidence that he was involved you know yes it is just growth but we don't we don't know what his intention was when he was doing that there are there inferences that can be raised certainly but we don't know if jose had been using him and saying hey do this for me so that other people see you doing this we don't know where that money came from we don't know mr floor and its connection to any of the deal but for jose's testimony in jose's testimony thing creates a compelling case against mr four night trial so when we talk about the importance of the contradiction where jose testified to inconsistent versions of the same fact in two different proceedings it's not trivial this is not something that simply immaterial jose's credibility was a very important part of the trial and defense counsel emphasized that over and over in his closing argument the lawyer basically raised a reasonable argument and said you can't believe any of these witnesses they're not credible their stories haven't been corroborated that was the defense should defense wasn't sort of an identity defense or eight an alibi defense or some other defense to be race there is nothing there's no witnesses called by mr florida mr floor and i didn't testify so when we talk about th the prosecutor's comments in closing argument just before you go to the just on the jose's comments his plea agreement was turned over to the defense it was your honor i to imagine there might be good reasons not to cross examine jose on that particular discrepancy i don't think so i mean i think that the defense was his credibility and if he's given a sworn statement in federal court that in fact he was the one who went back and manipulated all the money for this deal and then comes to court in the trial and says no no no that was mr floor not right but then if if that attack is made then the government gets to respond right right and they would be able to clarify and say well did you draft this plea agreement no did you agree with that yes is it in fact true but if that's much better impeachment than what was actually what actually took place at the trial in terms of jose because essentially all mr florida i could do was say well he's a cooperate or he must be lying for a benefit but there wasn't that proven inconsistent sworn testimony i think that's think that the real concern here is disclosure as the supreme court is known we prefer making making this part of the record rather than trusting the prosecutor in their sort of private deliberations as to whether this should come out who was disclosed or in the police room and well if that's right but when the prosecutor questioned jose at the trial it was not brought up so right there may be a twenty to fifty five claim  in the future on that score but we think that it's it's better that the prosecutor first actually brings this up if he's going to offer testimony that contradicts testimony he had earlier elicited in a separate proceeding because he is the only person who was at both proceedings mr floor and i wasn't at that first proceeding he didn't have a transcript of that proceeding before the trial and again the other thing i would stress is the supreme court's again made it clear it's about the fairness of the trial we're not talking about the culpability of the prosecutor we're talking about did mr floor and i have a fair trial so moving to the closing arguments i've tried to see separate out in the brief there are two related claims when it comes to missing witnesses one is if you presented i would say an affirmative defense but a defense that relies on identity or alibi or bringing in witnesses or presenting testimony the government certainly entitled to say that's a lame defense you didn't support it with corroborating witnesses you can't complain that the government didn't bring in witnesses to make your defense for you because your defense just fails that's very different when there is no defense and the government says well  they would have provided testimony for you you could have called that's the defense under absolutely no obligation to call those witnesses and i think that the government misconstrued what mr foreign i really was saying so i think there's a distinction between commenting on the lameness of defense and commenting on the lack of a defense counsel the thing that concerns me about this is that seems like a pretty fin i think combined with the other errors that occurred in this trial that that is a new trial would be ok but you you want us to police in one district judges to police what the prosecution can say and where bottle depending upon the difference between a reasonable doubt defense and other sorts of defenses right yes i do how sharp do you think that line is for people sitting in the courtroom as the case is going forward well i don't think that it is a stretch to tell the prosecutor be very cautious if you're going to make a missing witness argument because that that you you you're stepping to the line  the prosecutor could have easily and started in fact to say well we didn't need to bring in these witnesses the witnesses we did provide provide adequate corroboration for what happened that's all the prosecutor needs to say if the prosecutor takes the step up to the line then yes i do want policing of that line from the district court and we already police it in terms of if the defendant is the only one who can rebut right right and that's again going back to jose's testimony he was the key to whether this was a conspiratorial relationship or not the only other evidence that could could rebut that would be mr florida's testimony he's the only other person who is allegedly there with jose when all of this planning was taking place the other thing i'll say is the missing witness argument i think the problem is exacerbated when the government then says and we wouldn't bring this case if we hadn't provided these facts if these facts didn't rise to the level of reasonable doubt i think that's that's really the those two combined say listen there there aren't any witnesses out there who are going to tell you anything else because we wouldn't bring this case if there weren't if there were something like that we don't we don't bring cases and if so and maybe's so those two comments in combination i think are are more concerning than isolation and together i think both can go both can can argue applies here in the litany of cases that follows one dorio once a defendant brings up the fact that the united states could have called a particular witness u nited states's and tell respond we're not hampered or we can't say well they have the same right to call that person in this particular case they badgered russians a badger defense counsel repeatedly went over the failure of the united states to call two particular sharks farms employees and the united states said well they have a bill to call them as well they could hold them with prosecutors and district judges and even defense counsel can fall as far as the impeachment of the the cooperate witness defense counsel was given a copy document every other piece of test showed what really happened in that is it was the defendant who went back into his trunk and pulled money out of a the will of well where there's a spare tire and put you know it's difficult to impeach individuals when you have an interpreter and so you have to kind of pick your areas on where you want to impeach defense counsel decided fairly not to impeach in this area perhaps was because you interpret or perhaps not we don't know the curiosity just you know that's an awful lot of money just looking for drugs hidden in normally when you have something that size there's pretty much a sure thing you know what you're buying which you're going to get you know who's selling it and i can understand thousand dollars you know in there and up with brown sugar but it almost like it's it's somebody could even say it was a setup but i don't know it's necessary to look into all that if it's mostly curious of how this this amount of money can be chasing an unknown i guess so well that's why they had that if it was able to go through the tsunamis he knew th obvious at least you knew once not real from work it was introduced was brother who said i have a connection and brockton and so based upon that he left defense counsel said the united states had no  evidence of exactly what the defense role was when they came up on the scene that's not really tracked as your honor no one hundred eighty some thousand dollars out of his car but more importantly than that his code conspirator has already said presence of what united states refers to as a kilo press that it was a large level to somebody who could break down kilograms make them with mix put them back in and then trafficking techniques was able to say other than he said he pinned that was missing and we don't know where the pan there's no evidence where the panels it was ready to go and could be used to really rock the reaper heal if there's nothing for the rest of my some judge manuf think you brought up an interesting point and it wasn't fully sort of elaborated on at the trial but there is some question as to the santa bria has had established contact with the undercover officer want us to set up this deal and there but mr flora i didn't know why and as and according to jose's test my i just knew this and a prius and there is some question as to why mr floor and i would dump one hundred eighty thousand dollars of his own money into a car of somebody he didn't know that that is a question that that raises some you know some problems because it is such a large amount of money  there is a possibility for example that he was just going along with what the santa cruz were doing that that was actually their money that's why again jose's testimony is so critical in this case we've asked to remand fully