trial was trying to resolve disparate statements by mr pardo and agent tell of era agent l a very statement saying that mr pardo confessed to carrying a backpack of marijuana into the united states mr parra saying that he did not do that the jury's ability to make that resolution was hindered by four errors from the district court the st error i'd like to talk about is the district court's exclusion of mr parr as expert who would have testified that the photos taken by the government in its investigation of mr par prints did not match the photos of mr to paros shoes the government i mean the court the district court excluded this expert because it was untimely notice to the government the government produced the photos of the shoe prints taken during the investigation on monday july th the defense disclosed the expert who would testify that the shoe prints did not match mr parlow shoes on friday july th relevantly the government had noticed its expert that would testify that the marijuana discovered in the backpacks was marijuana on a windy day july th composite complying with the defense's request for that notice the district court here erred in determining that the defense's notice of the marijuana one of the government agents agent chavez testified that he had identified the shoot prints that the agents were following that lead to the marijuana that he had matched those shoe prints to mr pardo shoes when he arrested mr parra the government introduced this evidence to try to link mr parr is to the to the shoe prints the government's photograph of the shoe prints that they were investigating as part of the investigation and the absence of a shoe matching those two prints was significant exculpatory evidence that could have that would have changed the jury's verdict in this case especially given the closeness of the jury's verdict the jury did split its verdict after sending a note to the district court judge that they were split after an hour and a half of deliberations seven for not guilty five for guilty so our argument is that this air was significantly harmful to mr pardo the government in its brief agents who followed the shoe prints was shown the photographs taken by the inventor taken during the investigation and asked whether he could identify or in testify that he could not identify the patterning of the shoe prints from the photographs as they were admitted because agent roach is trained to identify the shoe prints and could not make the comparison argument is that the jury was not able to make that comparison without the aid of the expert the expert would have aided the jury in two ways the expert would have testified that he was capable of making this comparison had done so in other cases and had been admitted as an expert in to make the comparison in other cases it analyzed the photograph of mr parr issues in the shoe prints and concluded that they were not a match he also would have  here the defendant pretrial moved to depose three people in mexico who were family members of mr shapiro the forecasted testimony was that they would testify that they loaned mr joe paro the equivalent of eight hundred and fifty dollars in order to travel to the united states to work illegally he paid that too and they would have testified that he they get loaned him that money to pay to an alien smuggler the testimony during trial and it was interesting  motion for foreign depositions was that a person who pays to be smuggled a person who pays money to an alien smuggler does not have a motive to carry marijuana because the practice of cartels is to either charge a person either to charge a person a fee to be smuggled illegally into the united states or to force them to care or to ask them to carry a backpack of marijuana in lieu of paying the fee agent tell a ferret testified question if he did pay to be smuggled it wouldn't make sense for him to carry a backpack answer that's right that forecasted testimony bore on mr cho paros motive to carry a backpack of marijuana if you loan the money to the cartel he would not be expecting to do so they would not have any reason to do  based on other evidence that the government would introduce to counter the forecasted testimony that would have been achieved in the foreign depositions our argument is that it was not harmless given the closeness of the jury's verdict here but also  and further it did show because identity was an issue in this case mr parr was denying being the person who carried the backpack of marijuana mr parra was found over a mile away from the marijuana seven hours after the agents discovered the marijuana his lack of a motive when he's challenging his identity as the person who carried the backpack was relevant evidence and very and would have changed the jury's verdict on the count of whether he had imported marijuana into the united states if there are no questions on that issue i'll move to our nd issue the denial of the motion to suppress the relevant date for most of the issues in this case that was the date on which the government produced the photographs of the shoe print evidence obtained during the investigation as well as when they produced what i referred to in their briefs as the customs and border patrol or c  st time that the defense was and on notice that they had the ability to impeach the previously recited sequence of events in a way that would have been material and decisive on a motion to suppress th that motion in limine e sought to sought to exclude any involuntary or statements made by mr parr or any statements made in violation of miranda in the pretrial conference defense counsel elaborated on the basis for that motion that with the district court the district or the district court ruled that that was in effect a motion to suppress the district court the defense agreed with the district court's characterization but argued that the motion to suppress was not  timely for two reasons st because after a defense motion to continue the motions deadline the district court set a new trial date but not a new motions deadline while granting the motion to continue the defense interpretation of that in the only really reasonable reading is that it mooted the motions deadline when emotions deadline does not exist the deadline is pretrial thus the filed a motion as well as defense counsel's proffer of the reasoning for it in the pretrial hearing were timely even if that weren't the case a motion to suppress can be heard even at filed after a deadline if there is good cause defense counsel urged to the district court that the good cause was the july th production of the narrative this was obviously harmful to mr carro as it could have led to the exclusion of agent tell a very testimony about his statements and that was the primary evidence that mr was convicted convicted upon in summary i'd urge the court that these three errors were particularly harmful to mr paro because the up all of the physical evidence supported his account of what happened to him as opposed to desert indicative of having carried those backpacks those more of the his markings were not present on his body that he testified to that in the shoe prints that were taken in the course of the investigation when finding the marijuana were not the court the expert testimony about the photographs is not humans at all the three photographs were found in the investigation file they were not used by the prosecution they were introduced by the defense there are two photographs of foot side defense eight in defense nine and there's one photograph of the bottom of defendant shoes it's defendants exhibit one or where they were taken or who made the foot size at that hearing for a wanted for a for the district court doubted that the pattern comparison was exculpatory because of all the people that that came through that that that pastor of there's no evidence that this that the photographs were anywhere near the marijuana or had had any connection with the case other than the fact that they were in or that they were in the file in the closing argument the prosecutor said discarded the photographs say that they weren't relevant to subpoenaed that the defense counsel would would make a point of this at the defense counsel did or you to the jury that that shoe prints were horizontal lines and the defendant shoes had diagonal lines many vertically and the jury was encouraged to compare and did compare the pattern some cells in fact at that the essence of the lack of prejudice is that the photographs and the expert testimony were of nothing relevant but nevertheless the jury could conclude that the that the admitted photographs didn't have  and the courts is ok the expert can testify that's it for a wait but what happened after that was then it was proposed that the expert would talk about not just whether the patterns matched but he would talk about the government's procedures for taking and preserving evidence and then at that point the prosecutor objected and then the court excluded them again that's all it had at for a wait for night so the defense could have had all these leaked filings that motions do you want to continue it's and and they they decline defense declined but then the defense put on the record say saying yes i declined but it's because the court indicated that it wouldn't change its rulings but in this case the court didn't revisit the issue so the they should have taken the continuance they should have had the extra time to prepare the as to the rest of the foreign depositions of the evidence from the proposed depositions was from his mother his brother and his sister and any knowledge about his plans is it  told them before he left it's it's in the tree of negative that incident self serving in evidence if you don't tell your mother that you plan to smuggle drugs does that have any value to do i don't think it does they didn't have any knowledge of his intent or motive at the time he was at the border the only way it could be marginally relevant is as far as the act of giving him money that that that could be more with the test is materiality and whether it is relative saying they gave the money is it significant important or consequential or more critical to the case and here it's entirely cumulative of his case where the deposition that was excluded was the person who provided the defendant with a loaded vehicle here the relatives had no knowledge of that of the backpacks and then the confession boiling down the confession there's a proffer at the pretrial hearing in the proffer at the pretrial hearing is offended comes in waves his rights confess in the dea agents the gentleman says i agreed to speak with border patrol in reference to my apprehension and shouldn't event i understand that even though i invoked my right to a question attorney present with the yes i agreed to speak with border patrol without the presence and so that the testimony of the trial was exactly the same as to the sequence the attack on the symptoms is that the st waiver of rights doesn't have a time inadequate or even if there is no here if there's subsequent evidence of that as to the issues of voluntariness of the confession was voluntary that it didn't matter about any defects in the here and here this was rehashed at the motion for a new trial there was a hearing on it and all and the criticism of the motion for new trial is that the court didn't specifically address that  sequence but the court said i heard it as a testimony of the agents it was entirely cross examined and i find it to be voluntary so that subsequent decision as to volunt to clarify on the issue of the expert testimony the defense did really urge the expert after or just before i believe the government rested the court did take that up on page four  importantly after a brief discussion in which the court seemed to imply that the expert may be able to testify defense counsel asked so i will be able to call the expert the court ruled well i don't know what else can the expert testified to him the defense counsel then ga longer explanation and referred and when the government brought that the addition to the fact of the lack of match and the enhancements the testimony beyond that was not disclosed the defense counsel did explain that after a conversation with the lawyer for the government the friday before trial which also postdated the disclosure the defense counsel supplemented it disclosure on the tuesday before trial which was a wednesday given that it was based on further information about what the government had said its agents would testify to about the shoe prints the government initially taking the that it planned to have its agents testify about the shoe prints and where the shoe prints were taken the investigation the defense's supplement to its disclosure in response to that was appropriate it was not and was not untimely i will just briefly rear urge that auditing of the government also argues that the appropriate method for the defense here would have been to accept a continuance but the defense did the government the court did offer to continue the case in an off the record conversation that was then put on the record by defense counsel during the questioning about a continuance as the government accurately points out the defense counsel represents that it did not take intent units because the court had indicated it continuance would not change its rulings on any of the matters that have been raised in the pretrial conference namely the exclusion of the expert and the denial of the motion to suppress as untimely therefore a continuance would not have cured either of these  their reason for the defense counsel to ask or accept moving on to the foreign depositions issue them the government argues that that the testimony was self serving that you don't tell your mother that you're about to smuggle drugs but the fact of the loan goes to mr parros motive to smuggle or not to smuggle drugs it's not about this is what i told my mom it must be true it's about i borrowed eight hundred and fifty dollars from my family money that they had to scrape together and the only reason to do that is to pay to an alien smuggler the only reason to pay an alien smuggler according to intel of areas testimony is because that means you don't have to cross that means you don't have to carry drugs it does show his knowledge before arriving at the border but importantly it shows his knowledge at the st moment that he was associated with the person who ended up taking him across the person who came across mr shapiro testified picked him up at his home in chihuahua i'm a day before he crossed the border and that was when he had paid that person the money that he had borrowed from his family so in there's no reason in the record to believe that his motive would change from the time that he paid the alien smuggler to his arrival at the border the government argues that it is cumulative his of his own testimony as previously argued when the motion to this form deposition it was decided that was not known whether mr parnell would testify it was appropriate at that time to assume that he wouldn't testify but even if it was cumulative of his own testimony  united states versus con that we cite there was a question as to whether deposing five witnesses was needlessly cumulative or appropriately corroborative and the district court deciding that case to reserve that question here it wouldn't have been needlessly cumulative even assuming that mr shapiro testifies because it would add one additional person corroborating that to his account this isn't you know we weren't proposing to depose ten different people on this issue finally on the confession the governor of the district court's conclusory statement in the motion for new trial that the statement was voluntary is not enough to cure the air they district court did not make the necessary findings of fact to show that the attain