at the end because i think it should look at everything came out of lee with respect to the first issue the admission of the co defendants confession i think the parties are at least in agreement on one thing and that's the standard of review for this one and we i can see that's plainer standard of review but i believe the government concedes plain error we differ as to what the extent of the error was but the government concedes it was a plain hearsay or our position is that what's clearly a confrontation clause violation and i don't think the government really disputes that because the statements were testimonial statements she didn't testify there was no cross examination so you have a confrontation me ask you this just does the lawyer have to object to every bit of evidence that is theoretically objectionable i think you got me on that question i'm not sure i understood it meaning i mean lawyers all the time decide that you know this is not an evidence exam you don't have to identify every item of of testimony that is you know possibly subject to objection lawyers make decisions that testimony comes in and it may have i may have a valid objection it's not worth objecting over is it is not right isn't that what lawyers do all the time yes if you're suggesting maybe this was a strategic decision that the lawyer somehow a twenty to fifty five motion you know effective assistance rather than here on this direct appeal well i mean certainly you know that could be a potential alternative but i think the law is fairly clear that you know under rule fifty two and longstanding both supreme court a ninth circuit authorities that we have the plane our doctrine claims can be forfeited and that's what appears to have occurred here in waivers when it's clear from the record that the defendant herself defendants confession come in so we're going we really don't know what we really don't know what defense counsel and the defendant talked about at this stage in the case do we know you don't know but i don't think you need to go there i think that this is a classic suggested the instruction that the district court gave and this court still held that it was a we don't we don't have that here this is this is an error that was missed it was missed by everybody the government in this situation they maintain some responsibility to prevent this type of error when they want to jointly try defendants together and they want to introduce one of the defendant's confessions the responsibilities on them to to make sure that you're client and say it's all ok and i don't even get to cross examine that the thing and you know that's an extraordinary situation here just as a quick factual question at the tail end of the agent's testimony think miss hargreaves is her name correct she's asked so who did you who on the forfeiture not waiver we've got a plane error here everybody agrees there was a plane or and the government hasn't contended by the way the government has not content of that this was a waiver they've they've waived the waiver issue they agree it's a it's a forfeiture of the plane air so we've now discuss the prejudice at the end i'd like to move to the second issue which is the exclusion of the undercover recording the on this issue i think the parties are just in different areas about whether there was adequately adequate or adequate preservation let me ask you what your position is that there's because i trace that appreciate in your reply brief you kind of walked us through the chronology but it is the key point when your client was on the stand and i guess this was on redirect where the defense lawyer  asked first about well isn't it true that you earlier made statements where you denied i can't remember the all the particulars but you know what i'm talking about and the judge that shuts them down and he says well your honor i have three other areas without specifying what those other areas were is your position that we have to be able to infer that one of the areas that defense counsel wanted to go into was in fact the videotape i think that you can hear in order for this argument to be properly preserved i don't think you have to find that i think that what what let what was done leading up to that was enough but i think there are two key areas and that is right before ms fisher hits the witness stand the government right before she hits the stand says you know our defense counsel has told us they want to introduce the undercover recording and we want to make sure that your pretrial growing that it can't come in stays and the judge says listen you're right the ruling stays i can't always predict one hundred percent everything that's going to happen at a trial and what's going to happen on the testimony but you're correct my ruling stays so that ok so let's stop right there and let's assume that defense counsel didn't do anything further to get this tape admitted would you is your position that that was enough to tip to preserve this argument that you're now making i think that that that the district court had made a definitive ruling that is not coming and so don't even waste your time when you get up there trying to bother to get into it i think is a closer call i think that i mean i think there are cases that talk i mean i think that ruling is probably  you i mean i think it go either way you could say well she left a little bit she left a sliver of daylight there that maybe her mind could do teenage i think it's a pretty small sliver but you know i don't think the court has to address that issue because i think what he did after the fact i mean that he knew i mean the judge did not say your honor i have no i mean counsel i have no idea what you're talking about what are these other areas the government didn't say we have no idea what he's talking about the entire time there were two statements that were linked throughout the history of the case undercover recording everybody knew what was going on at the time and you know frankly but let me just push back because what defense counsel implies here i'm just looking at this particular page is i have other areas of questioning that i want to get into with this witness isn't that different from i want to play this forty five minute tape for the jury and i just didn't see any place in the record where defense counsel said your honor now is the time where i want to play sustained and he says is this is mr stewart your honor i have three other areas that i intended to go into with some similar questioning with the court's ruling be the same on all three and the judge says it would i guess i just i inferred from that that he wanted to ask your client further questions about i don't know prior statements she made in some other context but what we're talking about i want to play this tape for the jury i just seem to me obviously would have been better had the lawyer at some point said you know your honor i'm offering exhibit whatever into evidence and the judge said no it's not coming and then we would be here well you know i'd well maybe we would maybe one and i don't know but  i think the court's ruling was going to be the same you know then there is that line where you will issue has been litigated so thoroughly throughout the trial you know you want to be respectful to the judge and the rulings in when everyone the judge didn't seem to be confused no one seemed to what was going on and i think the difficulty exactly knew what was going on i don't mean to be there was any any real debate there but even if the court were to say well the issue was not adequately preserved it is plainer i'm still not sure what the government's argument is as to why there's no plane error if there was never an attempt to introduce the tape that's why i think this is different from the argument you were just making if there was never an attempt to get the tape interviews there's just no there's nothing to to argue about right i mean if you have an ineffective assistance claim the purest sense that the strategic call supposedly that was made by defense counsel is just you know beyond the pale but you've got to reveal to point to somewhere in the record where the lawyer tried to get interviews and unfortunately the posture that the  know i don't think it should be a game of gotcha it's clear what's going on in this case you know i know i'm already over the time i just wanted to hit prejudice a little bit but if i position that i mean what we're hoping that the court will find two errors and you have to good morning your honor is may please the court mark tackle on behalf the united states government did not concede clean air with respect to the written issue the government conceded an error in the fact that there should have been a limiting instruction so i want to make that clear we didn't kill him though i mean you i don't know if you were the lawyer who much more damaging i think than what you were willing to concede in your brief you have an outsider to the scheme this hargraves right she's not she doesn't work there she admits she's engaging in some kind of fraud and then says oh yeah and then is asked so who who on the inside did you send your people to and she thinker's the defendant then she's asked and that's what i want to clarify this and if this wasn't available who did you send your people to and she says the other the cooperate or who gets on the stand and testifies yeah we knew all about it so i don't think there's any other inference from that response other than that it was incredibly incriminating for ms fisher right you argument throughout this trial was that people were conspiring on the outside they were deciding what to tell the doctors and that essentially the defendant was kind of a dupe or she was just a sign of people to patient scheduling people's with the doctors and that she didn't actually know that these people did have these symptoms and so the closing argument that defense counsel made was really she's just a dupe people are conspiring before she came in and really the only thing that was happening was that her grades was referring was rick during patients to come and talk to one of the two people that were actually working there the only two people that were there consultants the only two people that defense counsel conceded in the opening that patients would be talking to and so that's where we would take a little bit of a step back and ratchet it down and say that's not based on the argument the defendant made during the trial that we don't think it's as prejudicial defense making out well but it's clearly a proof there it's not it's not something that in a limiting structure can cure that's why i guess i just disagree with you that that's supposedly the the fault here i mean that question should never have been asked that was totally gratuitous had nothing to do with the surgery by using their insurance we also have got one hundred seventy fourth dr john letters these are doctor these are letters that dr chung testified he never made he never saw these patients and some of the patients that we had testified about the letters also stated that we had never they've never seen dr chung defendant testified herself that she her writing was on six of them so she essentially admitted to that her handwriting and that she wrote you know six of these forged dr chung letters and then she ultimately moved to admit govern exhibit number clearly her jury's testimony because these this was a document that she course didn't commit and of course jimmy didn't tell her to me which was what her testimony at trial was we also have her being paid as a sales person upwards of twelve hundred fifty dollars per insurance  procedure a lot less for cosmetic and essentially what she was doing was she was selling patients on insurance based procedures because that was more money back into the pocket of the clinic she made two hundred twenty five thousand dollars in two thousand and ten approximate the same in two thousand and eleven which is a ridiculous amount of money that somebody would be making if all they have to do as defendant testified was you know speak with the patients for the patients to a doctor we also text messages in recordings that show that insurance can pay for cosmetic procedures and that coach and showing al v stated that she wanted to have her tummy and boobs done which is clearly a cosmetic procedure and then further asked when you said bleeding is that heavy period or duke or when i have to pee the defendant response heavy period laddering cockiness trust me it's worth the wait we also have  messages that we offered to corroborate this from n l n g asking for cosmetic surgeries such as liposuction vegetal reconstruction tummy tucks and breast augmentation and asking if those surgeries can be billed to insurance and each of those text messages the defendant says ye so this isn't contrary to the fed it's own testimony that the doctor makes all these determinations so she testified that i don't know anything about cosmetic surgery it's the doctor that makes all these determinations yet she's telling all these patients yes cosmetic surgeries commute paid for by insurance and so when looking at all th no i don't believe so i don't remember any testimony along those lines she didn't mention hargraves at all when she it moving down to the undercover yeah let's talk about the video so what does you i mean i was so shocked when i read you pick up your brief because you guys did seem to be talking about two totally different cases so your position is that they basically just made a strategic call not to try to put it on yes your honor they said early on or at least mr stewart said early on that the video was real and so the judge clarified that we clarified that at the end of the motion in limine a i  do disagree with defense counsel that the guy that mr stewart told us before fisher's testimony that he was going to offer the video that's not that's not what happened all mr coleman doesn't have the benefit of being there the reason why we raised it at that particular time was because it was cross examination of the agent regarding the interaction of that undercover video was done and we think that was a strategic decision because defense counsel in his closing argument made a big to do about how the government could have presented that video and it chose not to and at the government hiding something say that he told us the videos coming in the reason why he raised that at that particular time was because of cross examine of the case agent where the defense counsel elicited statements regarding that undercover video had been made right and so it wasn't mr stewart saying we want to offer this what it was was he's examining it to his point of you know the government conspiracy that they're withholding evidence and that's why we raised it again at this point and the judge said i thought that was resolved to end so that my ruling is it is it is it is the same however however she also says but things change during trial and i don't know what anyone is ever going to do so it certainly left the door open for her and i would think from the standpoint of i think the judge's ruling is more definitive than that i mean you  asked for a pretty definitive ruling that this video i think you're right i thought it was before you guys cross examined this fissure because you wanted to be sure that you were going to open the door to having it emitted by asking her questions about what she might have said during the to coverage and let me just be clear i think the government's position on hearsay was just totally wrong you guys need to go back to law school and take evidence again but but what the judge said was you're right as long as you guys don't ask her during cross about what she might have said to the agent this cannot come in and i don't know why wouldn't the defense lawyer be entitled to say well i got my ruling i'm not going to be good at this i think the follow up where she also says the judge says things change throughout the trial and i don't know what anyone else is going to do i think that opens the door for the defense counsel now to try and offer that video in some way or another and that's what we never heard in this case i also no e that the ruling wasn't so much was premised on the fact that the government stated we thought that this this had also been resolved in advance of trial and in no time did defense counsel stand up and say no this wasn't resolved we need a definitive ruling on it so i thought it was hearsay initially obviously and in hindsight is twenty twenty sometimes and we probably would have been so vehemently opposing it had we been made aware of the been tested because you laid out of such a compelling case for guilt when you thought you could have found all of the whatever was on that video which is the other problem that we don't really know for sure what was on there one statement that seems quite favorable for for the defendant yesterday and i think the video is lukewarm in the end in the end you know there are statements that are helpful to both sides and thank you just on the bruton issue your honor the the government is acting like that there was just what hargrave said wasn't contested at all the whole point of them introducing hargraves as confession hargraves was wanting the suit defense basically th fisher was running which is that to the extent fraud was going on it was these patients who were coming in and lying about what they needed so they could get this counted cause done it surgery so far grazes confession totally undermines both of their defenses and then hargraves not to say yeah i was recruiting these people to do this fraud i was sending them to miss fisher which miss fisher completely denied in her testimony i mean that that was undercutting her entire defense this wasn't some stipulated issues so it was it was extraordinarily robin says is that was the undergo recording of the undercover meeting that was my understanding that that had not been an issue mr stewart now has indicated that he wants to go there ok we know he wants to go to the undercover recording my understanding was as you just then the court says that would be correct but things change during the course of trial and i don't know what anyone is going to do in the process is understood your honor but the court says but yes you have the gist of it so this is exactly he wants to bring the undercover recording in in all you have is the government filing to a written women emotions to exclude the recording again they're so concerned about the recording that before she hits the stand they want to confirmation that he can't do it this is an extraordinarily helpful fact for the defense it's not  a recording is not in the in the record but typically when people make proffers the court isn't going to try an entire keefe based on evidence that's not coming in the lawyers make a profit this is what the evidence shows if they want to say no the evidence so something different your honor they should have said they didn't they never did until now now they want to come up here and say you know it's not that helpful to the defense it's clearly helpful to the defense that's why they had no interest in having that recording that's why they filed two motions in again came in  so don't let it in and when you take that error the only thing that could corroborate her own testimony and you take the co defendants confession which points the finger right at her to switch the team to trial she should at least get a fair trial where she can testify again