i am representing the defendant the talent reason as the court may be aware that this appeal was initially submitted on the briefs and then by order of january th the court ordered the parties to appear for oral argument i assume that this order was and did because the court had particular questions and therefore rather than jumping into an argument i would ask if there is something that the court would prefer me to talk about mass say something just for myself because we have not recently discussed this but it's in response to your question and i think one of the principal reasons that we asked was not necessarily specific questions that we had in mind but rather than the notion that the defendant the pallant having been sentenced to twenty five years in prison we thought it appropriate to have argument as well as briefs at least that's the way i looked at it but having said that we can proceed any way the designer would like us to proceed but why don't you don't give us your regular sure you are on our ok what i would like to discuss st is the on called witness charge where over the defendant's objection the court gave college the jury certainly as far as i can tell he was the only person who was mentioned serially at the trial who was not called as a witness they may have been some other bit players here and there who were not called but his name was is trying to guard against as well or wants the government tagged with this guy's all over the testimony why didn't somebody call why did you call them but the question i have about this because you want to specify you want limited essentially to be an on call witnesses and not one that's equally available how is how was he a vailable to the government any more than he was to the defend that will st of all the government was able to talk to him the defendant was i mean he the government could get him into court well but the case law cited in the brief talks about the practicalities of the situation and fear the defendant didn't know his real identity the only way he was able to contact the boring it's was through the government he made two attempts to do that and was rebuffed the nd attempt was the week before trial the government was evidently able to contact me borat and get an answer back that mubarak's didn't want to talk so obviously there were still open channels of communication between  government evidently the government can helen and the court well the government could is sort to take his testimony on commission under rule fifteen and certainly the government was able to interview when gain information from a borage whereas the defendant wasn't so even if the government wasn't able to help in the court d there was practically speaking an imbalance in what the government is able to deal with and get from bore rate compared to what the defendant is able to do and in many and you know in many prosecutions the government has somebody out there who's willing to talk to the f b i agent but not not to defense counsel well and in those cases i believe that you know the case that case wo support a conclusion that the witnesses under the conclusion of the government i mean the k g a court says quote you know where the witness quote had assisted the government as an informant and expressed on willingness to speak the defense counsel before trial unquote the witness was not meaningfully available to the defense and then the k t s that court said well the witness had ended his informant relationship with the government two years previously and therefore had not was no longer under the government's control but here we have a witness who the government is able to talk to a week before trial and who for all we know whether or not he's willing to testify he may still be providing information there are many informants who don't want to testify but who continue being informants in a foreign country or outside the reach of process i would bolt the government the defendant can bring somebody in court what's the government to do why is he not equally unavailable all of the government can talk to them and he's equally unavailable both to the your client and and to the government well i would say he's not judge because my client can't even talk to him and if if he had been in the united states or he had been disclosed on the his own name maybe my client could have sent an investigator to see if he could approach the witness independently but was not able to do that and then i would sit near with you for a minute now excuse me that's can we shift to a different topic yes government essentially a listening testimony about his truthfulness well i i would submit that this is a case where the defendant's credibility was all important because the government won that how does that how down how does what occurred have an impact on the testimony on the testimony that the jury had to consider will be closed to agents the government elici testimony from two agents that the defendant did not receive a cooperation agreement because they considered him on truthful that was brought up in some nation and it was the last note that the jury sent before the verdict you know before it issued a verdict had to do with the testimony of those agents so obviously the testimony of the agents was something important to the jury and really i mean given the timing of  the the request as you know it's shortly after the note was sent the jury came in with a verdict so that would seem to be what they were talking about at the time was the testimony of agents hagan's and id and then also they they specifically requested a read back of testimony regarding mr along and cooperation so that would seem to be what was on their mind shortly before they delivered the verdict so certainly in a case where i mean where the defendant is raising a defense that you know the government calendar rise this being out of a spy novel and that obviously a jury might be skeptical of and really it hinges on the defendant's credibility as well as the scheme and some photographs that he provided showing that he wasn't indeed an opponent you know took part in protests against the iranian government that testimony by two government witnesses that hey this guy's a liar is something that is very strongly prejudicial to that is our review on this particular issue for playing or would i believe that yes it is the cause this was not you know this testimony was not objected to i'm sure that the reason for that was because the acquired case is not yet been decided at the time of trial the counsel in this case was very able and made many objections but i would have to have richter that's been around you know by the rising another witness in this case a witness was also the defendant as as lying and the richter issue was objected to so while the richter issue is not pla issues several of which we've already discussed and several which were not preserved below none of these issues warrants reversal in the court should affirm the defendant's convictions and i'd like to pick up with the st issue that counts for the defendant  raised that is the uncalled witness charge there was no error regarding the uncalled witness charge as you point out judge pooler mr morgan who is not the only one called witness at the trial to name just a few about who the much testimony was offered including to say testimony because they were not present at trial i would also note that judge hall is correct the inquiry here is not necessarily with the informant have spoken to the government or informant not want to speak to the fence but rather is that individual available to the government at trial and that clearly was not the case here was a voluntary paid informant that he was located outside of the united states he was unwilling to provide testimony or attend t so the record of the quizzical on whether or not the defense ever actually receptus individual the record is not equivocal in the fact that the defendant was not required to go to the government to contact this individual he chose of his own free will not to respond to or speak with defense counsel but the government had no control over it either for those reasons the court should conclude as judge prescot did that this witness was equally unavailable to both sides i would note there is also no prejudice for mr morgan was absent many of the conversations in which he was involved were recorded those transcripts and other recordings were entered at the trial and there is no reason to believe that he would have given any evidence that would have been more credibility it seems to me the law has been pretty darn clear in this circuit for a number of years that that is a totally inappropriate line of inquiry you agree it was their work i do not your honor i agree that the ball clearly would get on the stand i mean you would put a witness on the stand and ask him you know in a way that suggests that the government has formed outside of the courtroom some some some  the st thing to recognize your i think is that in context this was a very different case from a court and that began right at the center counsel's opening where defense counsel asserted that the defendants efforts to cooperate were themselves proof of innocen i also know that in the sense counsel's opening defense counsel that the defendant had lied in those proffers specifically defense counsel said that he had told a story that was not entirely not completely true  the government was i was responding to this argument that the full operation itself or effort that cooperation were in fact evidence that he was innocent and the ship had already failed and whether or not the defendant been truthful and it failed because the defense counsel stated in its opening so while i and i completely agree that in the normal case agents would not comment at all on the credibility of other trial correct your honor and i think that on the whole the government certainly tries to hear to the line that this court has drawn i would also note that the comments that the agents gave were about the defendant demeanor and candor during this proffer sessions and not about his credibility generally or at trial and just to underscore the point in addition to defense counsel opening the defendants and stuff later testified quote if i'm guilty of anything i'm guilty of lying there is no monopoly unless the government has a monopoly on lying yes i'm guilty and i quote so and after after these questions i don't think that there's any question raised in the briefing that the government properly focused cross examination on showing the jury exactly how the defendant's pro statement had evolved the internal to the inconsistency in his in his testimony and discrepancies with other physical and forensic evidence all of that is what a court calls for i would also note that this case is different from a court because the government did not final teeniest he used the dissent of the dancing inconsistent theory that did not believe that was a key factor in a court in fact the court held that this error that we're addressing now in this case  give the what i would call more or less standard charge that the determination of the credibility of witnesses is solely the province of the jury did she give that in the original charge or was that supplemental she gave it that simply attempting court to cooperate was proof of an exam so there was no clear obvious area here that affected the outcome of the proceeding in a manner that seriously affected the integrity or the public reputation of judicial proceedings as are required here  so responding to those two issues i think those are the things that we discussed with the appellant i would just know very briefly that the defendant was not compelled to comment on the eden's credibility the challenge question that the defendant claims here was referring to whether agents had fabricated statements and in any event the defendant was never required to and did not answer that question judge prescott also instructed the jury that question of themselves are not evidence and the district court did not air by declining to interrupt the defendant's redirect testimony nor did the district court warrants reversal is there any further questions that the court had that would be happy to address them otherwise the government would rest on its briefs thank you though mr i don't think you have three minutes or a bottle thank you your hon on the acquired issue st of all the agent's testimony was not limited to could mean or judge agent oddny for instance testified we didn't feel that the answers we were receiving were truthful and we felt like there may be things a minute as well that's true thirty six of the appendix agent higgins testified he didn't seem as forthright he didn't seem as he was wanting to explain all the information in detail  and then you know went on from there that's at about seven hundred and sixty seven to sixty eight so they're not just talking about oh he you know about his demeanor or behavior or a tone of voice the agent thought me specifically said we didn't consider his answers truthful nd of all to the extent that the government is claiming the defense opened the door certainly the government was entitled to respond to that in opening an information it was commit would have been permissible for instance for the government to argue wants a nation that certain things the defendant said during the cooperation didn't match up with the rest of i believe he said the defendant that not everything the defendant said was true which is a little bit different from yes maybe we're splitting hairs but ok something tantamount to that and did the defendant testify or say in his i guess in his testimony i admit i lied or words by that time the horse had already left the barn judge by that time we had you know defendant the agent's testimony was on the books we don't know if that's what the defendant would have testified to if that testimony had not been on the books and so i mean i would i would submit that the government was certainly entitled to answer any argument th defendant's cooperation by means of argument the defendant argue something then the government can argue in response to it however it doesn't extend to eliciting testimony from government agents regarding the credibility of the defendant then i would submit that not respect this case was exactly like a quart and in fact even worse than a quart because no curative instruction was issued which was one of the things the acquired court cited  finding that this was only reversible error in combination with another error and in addition the witness who whose credibility government agents commented on in a quiet was just a witness whereas in this case the witness is the defendant this is the person who the jury you know whose guilt the jury is deciding on and who you know whose when the jury weighs his testimony they're weighing the testimony of a person fighting for his life and freedom go back to the issue of more bore it's it is true is the government said that they were recordings of meetings in which he participated but not all of those meetings were recorded they were on record there were things that happened as well outside the recording in which liberates was a part and he was not able to you know he he was not able to provide information about that and weren't sure he it's right and i would submit on that issue that even if the court were to find that he was not under the government's control that the better practice number of this court's decisions is not to give an instruction at all and to let the parties argue out on some nation what more bullets d absence could mean or not mean and maybe the better practice but what's the standard by which we review an erroneous struction under these circumstances well i mean it would be whether the instruction accurately conveys a lot of the jury and i would submit and the jury charge taken as a well i mean they could have argued it but any argument to that effect would have already been nullified because the court or was had already told them it was going to instruct the jury not to draw any adverse inference against either party so if the here was in not letting the defendant make that argument and lead and in not and in providing instructions that prevented the jury from considering it so i would submit that both that and the acquired error and the richter error certainly all of those in combination prejudiced this defendant and require a new trial and if there's nothing further i am out of time so the court i f there's nothing further from the court i'll rest on the brakes thank you thank you both will reserve