chavez's conviction in this case was no gotten conviction and is a conviction that this court should not have confidence and in this court should not allow to stand in the integrity of the conditions undermined by several factors most notably a succession of improper statements in arguments to the jury and the prosecutors are bottle now in their rebuttal the government repeatedly and improperly made statements about him for all storing the credibility of their informant willie slater and that's where i would like to start my argument mr mann connect can issue a question and clear the did you make arguments regarding the prosecutor's position that mr slater would go to prison for the rest of his life and the prosecutor repeated this one thousand two hundred and thirty four times in a short succession that if you plead remits gone poof and he's in prison for the rest of his life i have two questions for number one was was that in rebuttal or was that in the regular closing i mean number one and number two where did that come from did mr slater testify in direct examination or cross examination that he believed he would go to prison for the rest to jail for the rest of his life and judge i wasn't going to start there but what we now that were there i am happy to address that the actual you're right i believe it was said four times in the rebuttal and one of them kind of the highlight one from my perspective  prosecutor told the jury that if slater got on the witness stand in line quote you're going to plead graham has gone he's in jail for the rest his life unquote there are multiple problems with this statement the prosecutor obviously did not going to use that term the pleader him and so the only conclusion for the jury to draw is that the prosecutor believes that is telling the truth it was like a personal stamp of approval from the prosecutor that i my office believes him and you should too essentially inserted himself into the situation as the arbiter of slater's credibility and that is improper bolstering now as to more directly to what the court asked about in their response you know the government prison for rest of life as a matter of law a life sentence was impossible as the connection had a forty year maximum making the statement just just on its face and accurate his guidelines were thirty years to life and i'm not downplaying in any way you seriousness of a sentence of thirty to forty years however the prosecutor apparently thought it was necessary to exaggerate it into a life sentence and he didn't say that once he didn't say it twice he said at least four times so again not only  statement improper vouching for slater's credibility he has pleaded raymond was not told us we must have been truthful it's by definition an inaccurate statement the jury every time it was sent understand the next statement i'd like to sort of runs the gamut of a few problems addressed in the brief st and foremost it is your d douching to the credibility of the witness in an attempt to bolster slater's credibility through the implications of the jury the implication is listen he always told us the same thing now you didn't necessarily hear about it from any witness because they didn't it was behind closed doors in my office or wherever it was but i'm telling you he was always consistent with us and he punctuated with that's a fact well as t has many times said improper witness vouching occurs when a prosecutor lies in facts not before the jury to lend credibility to the witness the prosecutor assuring the jury that he consistently told us the government the same story is improper belge based on information not in the record there was no witness who testified about slater's consistency in his story to government agents or to government prosecutors in fact the opposite is true which brings us to the  nd problem of that exact same statements it grossly misstates the evidence it's not accurate the prosecutor put an exclamation point on it with that's a fact but actually it's not a fact initially when the government went this letter about the drug activities room three he never mentioned this as part of the prez operation so in addition to improper balancing that statement also misstates as slater was always consistent on that point when they knew very well he was not consistent on that and throughout the argument over and over again the prosecutor told the jury that slater was consistent about a whole host of subjects that the record shows he was not consistent about mr manning for it let us i don't want to interrupt your thought let me just put this question out there you can respond to it when you choose i think you make some fine observations about improper statements and i think you've done a good job representing your client here the question i have what's the standard of review not every one of these things were objected to as i think you acknowledged and so some were to be sure others were not but you're not you're not asking us as i hear your argument and as i read your brief you can correct me assistant clearly stepped over the line several times here that had a big impact on my client getting convicted what standard of review do we employ well judge i'm glad you asked that i think it's different we have so far talked about two specific statements which i think kind of represent certainly the kind of capture of what was happening and two of the most egregious the one that i just talked about judge it i did judge so i think i think specifically the two there is two objections so i think those two prep probably need to be separated to some degree because they were specifically objected to and judge i now i would like to just briefly before i get of time the comments regarding defense attorneys you know throughout the rebuttal there was this sort of building criticism of defense attorneys like you know that's something defense attorneys do and that happened four or five times it reaches crescendo with quote let's talk about things that matter not the little details that stinks in the about a difference that defense attorneys make their living there at which point there was an objection judge i don't know how that statement commune's her but as anything other than an attack on the integrity of defense attorneys across the board it was an attempt to undermine everything we had done during the trial and every word of our argument and it suggested that the motivation for the art was money not justice and that is offensive to the system as a whole and i think that line of improper argument in attacking the entire integrity of entire portion of the federal bar at the door that this court should not leave open even a crack i think it should slam it very shut very loudly with the opinion in this case but judge stand briefly at your question i think those two statements need to be considered a little bit separately because there was a specific objection ok very well we'll give you a couple minutes for a vote on mr fullerton let's turn to you now yes good morning me please the court the that the defendant is telling the truth and the reason the government knows that is if he was not i don't know who tried the case i say she or he told d the plea agreement and since the plea agreement was right there and mr slater testified he was still subject to the plea agreement what do you make of his argument that the jury should conclude from that that the prosecutor believes him or that it is probable strain that that's the the concern i have is in your brief on page thirty one and thirty you have a long block quote where the prosecutor repeatedly says he'll go to jail for the rest of his life and i don't know where that comes from it's not in evidence but anyway the argument was made and then you're going to plea agreement is gone and then on page the bottom of page thirty one and thirty two of the brief you say well if the government's not arguing it with poll the plea agreement which is i read but that slater understood that if he lied he faced severely increase penalties but that's strikes me is when we say the plea agreement is gone that means there is no plea agreement at least to me which by the way could happen right i read the as for the other point that mr mann makes this morning regarding the consistency this later had exhibited throughout this initially stated that he got through works from char is from four to five turns out that it went in testified he had said it was from four to seven tar is grand jury testimony i think was from drug dealer he had all the feelings that you and memories have and he was trying to be truthful so yes there was a minor consistency but the major consistency and one that matter these defense tactics it was her miscible for the prosecutor to argue that you know to criticize a defense tactic which where's your focus on the trees rather than before and what the government was evidence and video as a politician it's been to that point the government you're quite right i believe has the opportunity and was correct to say he can't tell you the exact number because he's not a professional witness i think that's ok he's not a polish guy i think that's ok he's not a tape recorder i think that's ok right but then here's the vouching he is someone who's doing his best to tell you the truth if that doesn't cross the chalk line it certainly get you know get some know about slater's credibility the nd thing i would point out is there was testimony on redirect of where he slater having been cross examined on and you know a number of inconsisten in his in cross examination there was regenerate testimony from slater that he was trying to do his best to tell the truth so that was in evidence and for the prosecutor to remind the jury of proceeding in a bit of a of a higher level of generality than i think it should or it needs to there's no there's there's absolutely no question of the generality you're discussing that the government has an interest in defending its witnesses and arguing that evidence is materially consistent that it's corroborated everyone can quickly agree but don't how about the comment about  defense lawyers making their living on emphasizing distinctions without a difference i mean i think in your brief you say it's unfortunate wordy or in our call language or something i mean my word shut the evidence against her was extremely strong she was on video ringback having handed librium of heroin to willie slater now the argument of course was not that it wasn't her or anything improper argument instances that come before this or can be a living leave you have to because the strength of the other evidence case this is not one of those cases the government evidence was not extremely strong as the as the government has put it particularly as the knowledge element they could not have got the conviction yanna reasonable doubt without rehabilitating slater's credibility the august th video standing alone and that's where the evidence is absent slater's credibility does not meet the standard of proof required in drug distribution and drug conspiracy cases in this district she is on no other surveillance associated with the case she participated in no other recorded transactions with slater the video of her handing over the package is not enough to prove her knowledge did not reply and united states are scarce to seven certain states that quote d evidence that calls for inferences focused on a defendant's presence or association with criminals or the criminal activity fail to carry out the government's bird unquote that's what we've got here without the government's improper bolstering of slavish credibility the government case is reduced to inferences focused on defendants association with criminal activity which according to garcia the improper arguments by the government were serious they were sustained throughout the entire rebuttal this court should not result in a harmless error finding it was not harmless and it's also a nest a message needs to be sent that this is not the proper way to obtain convictions but over