whether he intended to possess and distribute them but the government proved he's key elements of knowledge an intent in contravention of the rules of evidence most problematically and what i'd like to focus on today is that the government for the government to put on evidence to suggest they didn't have expertise there's certainly indication that they had expertise i think the president says you're just that certain a lot of times counsel do not object to clear testimony even though the expert has not been designated as an expert by the court because they don't want to emphasize the fact that the person is an expert who so we  foreclose the possibility of the government making the proper proffer and why should we reverse just so we can have a hearing where it seems to me that there's a pretty good likelihood that the expertise of these witnesses could be used ok so i get a couple answers there's a lot there i don't to begin i don't think that there is any thing in this court case it's just per se rule that plane error review is somehow unavailable to expert witnesses challenges and more over i think it's important to recognize that that certainly the defense failure to object and i'm not defending that on on any grounds obviously  can inform the court that there was an informant or in that post so the challenge with that question your honor is that a lot of times these demands are made informally right by letter and wouldn't necessarily be reflected in the record that is that then and this court's equitable procedure for supplementing the records introduce that i can deal with that at twenty eight jailor though but putting that demand aside and government certainly didn't chose to proceed with a witness testimony and that's and the argument that was focused on was was there present or not the prejudicial how important was this testimony but it seems to me that's not the right question for prejudice here question for prejudice here is if he had objected isn't it likely that he would have been the that the officers would have been qualified as experts and therefore no prejudice not because their testimony was unimportant but because it would have been so easily remedied why isn't that part of the prejudice problem so i guess two responses your st i think it's not the right analysis but even assuming it is equal i'd like to why it's not but then i want to hear your there is sure so let me deal with the history and they've always gotten approved as experts and that is all we know is that they had experience as law enforcement officers and there is no per se rule that says law enforcement officers are qualified as experts  matters where the determined effects are missing from the record we will not find player based on the possibility that actual development would have made the air clear this rule is particularly appropriate here because the fed does not argue that the officers lacked the nex assuming that that sort of rd problem now also i think that we don't the last part that that discussion there is that we don't have anything here other then then it's to the years of cases certainly in the but that's usually when there's a fact that a defendant is objecting to on appeal in this contesting a fact that was unchallenged essentially below what we're challenging here is effectively opinion testimony that i think is very hard to characterize as anything other than improper expert testimony and so we're looking at it as as a as a rd problem alice i really think it comes down to the fact that that law enforcement officers just they're not immune from exclusion as experts and if you request and there's nothing in the record to show that requests it when it's not in the record makes a difference because maybe we don't know what the you suggest there was in formal requests are you going to have any outside experts coming in and we'd like to only at the question of whether or not there was other overwhelming evidence of guilt to get back to judge you because question that is that that there was error it was plain but it didn't matter because it was overwhelming evidence of guilt in that case we this is nothing like like that and i guess i would also point to the published decision by really that that assumed error on the st two problems and then proceeded to conduct a  about code names and about practices we got we got this guy driving a car i mean passenger in a car with a lot of drugs in the overhead light and he admitted he testified admitted that he installed those overhead lights and he gave an inconsistent story about the location that they were going to in the driver  why why why why isn't that pretty overwhelming guilty even without consideration of the the text message well it's not just the text message it's the testimony about the pipeline account it's testimony about about eastbound westbound lanes it's testimony about the money orders going to mexico it's it's a whole nexus of opinion evidence that took this case from one of proximity that is a passenger in a  that evidence without anything more is sufficient i'm sure it's certainly sufficient for reasonable suspicion and continued detention with the stop by all accounts mister so statements to law enforcement were actually accurate who write that seems had the vehicle was probably going to tennessee and to nashville and that he disclosed his proper name his real name in that there was the other defendant to ultimately pleaded guilty to this offense and didn't go to trial that gave an  inconsistent testimony but certainly would be reasonable suspicion but i don't think that it's especially sure and that's why the cops the officer was able to detain these people but i don't think it that trial evidence particularly in light of mr christina's testimony to the contrary which was significant undermined obviously by the opinion testimony that was introduced elevates this case from one of proximity to prove beyond a reasonable doubt of knowledge an intent to possess those drugs now even if you're not one hundred percent there with me on the rd prong prompt we have a number of published cases in our circuit recognizing circumstances where law enforcement officers have been permitted to testify as expert  witnesses based on their professional experience but my question to you is where can we find the strongest th circuit case to show that a law enforcement officer testifying based on professional experience must be qualified as an expert under rule seventy two what's your best case i mean you mentioned banks but that's unpublished sure i think  there's three cases i guess i would start the best case i think is this court's recent decision in duran from the end of last year which we cited in the reply brief and which in which there is an analysis of both what's expert and what's may witness testimony and both this case was tried in a district where we've been dealing with one district judge for several years the only district judge and over that time our office in conjunction with the federal public defender so office and the members of the panel turning lightness panel like mr mccloy often here have become quite adept at really carving down a case to the bare necessities in order to  docket going in this case that was followed the two sides get together early on as much as possible we pray it met all the exhibits we use stipulations to avoid expert testimony and we tried to parrot these jury trials down to the extent we can so that our judge has the time available to try the other paces and deal with the civil docket i just offer that as a way as a way of background as perhaps a low cartel testimony really but that was that seems totally inappropriate can you give any justification for that and i'm not asking for a harmless error commit that's that's something we'll have to consider  the testimony after something else came into evidence about him not having connections with mexico well now i mean he has his driver's license said he was from mexico so th extend that's one argument i think another argument is that it goes to this defendant's believability for him to attempt to argue that he came from this area and had no idea that should raise any suspicion is just not logical but to not know that there are i'm not saying he's a participant but i'm saying he what did he say that was inconsistent with  colorado and the argument they are that you couldn't simply say well because they're from that state it's definitely prejudicial because that was a case dealing with marijuana which the court pointed out was now legal in about half the country tell you the population but i can tell you it is one of the states st of all not a state in this country not a state that we typically see people from on i forty necessarily we could you have said he's from mexico i mean they have their problems serious problems with mexico he's a mexican so he must know all about drugs now you can say that i don't believe you could say that i think that there might be depending upon all together answers that are given and the other factors that trooper had discussed there might be other things that raise your suspicion but that alone i do not think you could say here the question about whether it was notorious and whether there was a drug cartel by that to have that taken is as support for that type of evidence well i have got to speak for myself but it really we certainly appreciate that and it's something that i would certainly take back to our office and let them know that we should not be doing me as a joint hurts opinion on that but on harmlessness where does the fact that the jury is that note that they were originally deadlocked and that they took eight hours or six hours or whatever in deliberations word how does that fit into whether this is harmless remote well i think it fits into an analysis that also sort of comes up in the plane or as to whether or not the evidence was overwhelming etc the particular place that that comes up here with rick with the allen charge is that i think it's important that the defense were the people who were supporting the allen charge my reading of the record is that the the a u s a was actually suggesting caution perhaps we want to that point yet and it was the defense attorney who said now i think we should give the al charge it's like a sparkplug bill get back there and give us a verdict they said no doubt is him i'm wrong on that dress and they're not about that they are the law i believe they sent a note out in the evening that they were deadlocked in the next morning when they they're concerned about this testimony of this in the in the law it could be worried about this one of the officer about what the the mist the text message said where he could have just been something else he could have been we do we have any information about would never work could know where i just wanted to do as of the not not that i'm aware of if there is i do not recall it at the same time i asked for some testimony or exhibit i don't think so i think not that i recall is is perhaps the best answer i c that this is a closer case than we might have thought otherwise just by looking at the record from one of your hermas you've got a couple of harmless issues one is the evidence is overwhelming they wouldn't  the other harmless as would judge george said was that they could have easily gotten qualified as experts exactly as a totally different harmless error but this go back to the st one and my question is where does the deadlocking of the jury fit into well i think it fits in a couple of ways one the fact that they were able to reach a verdict that the proof was was overwhelming and that this is a case in which the defendant its credibility was able to be examined on cross examination so the jury was not left with looking at this in a vacuum they were able to see the defendant see as testimony assess their believability for himself for themselves and their case i believe it is a borough that talks about that as being an important factor i think it is important as judge har explained that these people clearly would have qualified as experts they the number of years of their experience the fact that there was no defense request in the record that i'm aware of for a report on notice but we certainly know there wasn't any surprise that these people testified in fact to a large part of the testimony that was brought out regarding the experts wasn't that solicited by the defense attorney on cross especially any opinions about believability i think that's noted in our brief  counsel because i just ask you about something you just the law enforcement officers could have been qualified as experts are you  conceding there was error in that they were not qualified as experts we've been talking a lot about the steps of playing error but we really haven't said much about step one are you conceding error at step on we are not conceding error because we believe that there are cases from this circuit that allow experts to give and i did it again that allow witnesses to give the opinion type testimony or defined terms or talk about trends when that is is something not that they're coming in giving a classic expert examination means how do you disting well i think one of the distinguishing things would be that the james river case involved things that would be far far beyond a normal journal officers information such as technical text with the jury understand what those are the code words that have been allowed by several courts i would and well c when when the law enforcement officers testifying has experts does that but at the quintet a case for example do you have a case where non experts have been able to explain the code words not based on their certainly it was more obvious that the terms were defined based upon what they learned in that particular investigation in fact or cases always make that reference we were talking  y it doesn't go to an element we even of if nobody's said with those court words may they still had the the drugs discovered it had code words being talked about and they knew that they didn't need any of you talking in code well that's enough to say you got to be you know suspicious if you're talking in code and why does it even matter in this case that they knew which referred to cracker which referred to something else or how much quantities i  do not know this i was not a very relevant fact i don't it is i guess relevant to show that they're trying to hide their behavior i do not know that it certainly wasn't you know what the case turned on by but but you don't need them to say yeah they're talking  go that's self evident you don't need any officer to say what the code words mean it's self evident they're talking in code that yes that's the point that is true and it will be testimony of the officer about this is what those code words mean i don't see how that is if under plea error we are talking about prejudice is one of the prongs i don't see how that testimony is very prejudicial now they didn't necessarily need to know whether china was heroin or cold was methamphetamine other than what was found in the light bar and the other texts that were discussed were discussed simply for the timing of them texting wondering what's happened they haven't heard from me you know you and so i we would ask court to affirm and promise the court that we will not be at so close to this line and in the future if there are no further questions expert witness testimony that is that it and answers the prejudice in this case that was pointed out viewed by the jury as incredibly close even with this in permissible testimony and i think if you apply a categorical rule that  encouraged a council in the courts to pay more attention to supervised release at sentencing and not treated as a secondary condition by all means i think you should mohnish the count cut defense counsel government counsel in the courts about what is proper and what is not proper and when you need to object in these