thank you your honor good morning my name is richard levy for the appellant my hair d op the key factual point in this case is that no reason was given for the sudden last minute decision to move to withdraw it was about the government knew on the st day of trial when it played only the ex urbs that it was only going to summations began only when the defense summation relied on the full exhibits three and four did the government apparently realize we better move to  has to it's not structural there has to be some prejudice what was the prejudice under the gaskins case which is the rule thirty case were all instructions were given or not given by surprise and what seems the most closely analogous situation to this case there are two ways to show prejudice both focusing on the defense some mention not on the strength of the overall case but  the party was unfairly prevented from arguing his or her defense to the jury or was substantially misled in formulating and reason there and i have focused on that and that's why i wanted to ask you about it  essentially the summation was they taped a whole bunch of stuff and they never saw mr de ab delivering the drugs to the fire and some i want to point out to you the absence of that on the on the  tapes that was true of the tapes that were left in evidence correct there is no this and that and when that argument was made the government's response essentially was well they're right but we can't get everything and we sure have a lot didn't have anything that showed the deal and so given that how it hadn't really heard the argument the argument was true and the government admitted it was true this were the st point the judge here which is how central the full exhibits was to about the tapes with what you heard just ask that they didn't show the actual transfer so i don't understand how even if they mention the tapes how it's a big deal that they didn't have the full tape a couple of points to the judge pretty this was the dog that didn't bark if you watched the entirety of the tapes you see low what was the point but this is the excerpts that they saw two so it's not that different it's not that different but it's  i case where you have a day in the life video of the paraplegic oh i'm having having to do everyday things sure you can have testimony about that but the bigger this of a video showing it is worth far more but it's the take it's the vividness of a video seems like seinfeld it's a show about nothing because what you're what you're arguing is there's nothing on these either does nothing on any of these videos that show my client doing the ultimate transaction and how many and that's true but it's true with a c two videos or four or six or eight and i'm not sure why it becomes more vivid with the absence government didn't get up and say oh you know we you know that's not another video somewhere the government said we don't capture everything and we didn't capture that but what we captured is good enough for you to convict and the video would have made that that much more powerful but i also martin's a problem here for me is that the jury didn't ask for the video so we don't even i mean i think your argument depends on the idea that the jury would have wanted in the jury room to watch this full videos and don't you have to the question of the prejudice the defense puts his credibility on the line even if the the full video showed nothing he said these are going to be in evidence you're going to get to watch these watch these because these are the best that's only his credibility of the jury actually that plans to do that and we have no indication that they did because it seems like if they had wanted to watch the videos because they thought it affected their assessment of credibility they would have said hey where are the videos i think i think the more likely inference is that religion is the defense says watch these watch these what was brought into the jury room where the admitted exhibits but i wasn't the question i asked with the jurors told that the judge has excluded some of the exhibits no no so now far as they knew they got the complete set of tapes jury really know anything was missing all we need is one juror paying attention to the defense argument leaving through the exhibits seeing that we only have excerpts and then saying ok obviously the defense was one over on us we can't rule that out it seems to me pretty plausible given the importance of this argument to the defense the primacy of fact this was the very st thing then again that cable to the jury room that hasn't been played in court a structural error period that's holding i think that has to be in the context of the defendant's right but it's a is it in the context of a case in which the defendant objected to the introduction of the tapes and i think that's what happened in and yes yes you here you did not object to the introduction of the tapes in fact we saw that and that seems to me the absence of the objection protect the defendant's rights without an objection and with affirmative desire to have the exhibits introduced there's no there's no error you've got you've exceeded your time or give you some time for a bottle because we took may please the court pram all than for the united states this course should affirm for a lack of prejudice as the court has already alluded to there was no dispute about what the videos did not show and the videos that were played and remained in evidence those clips were what supported the defendant's argument that there was no video recording of the actual placement of the lemon had box on the tire that wasn't in the video that wasn't disputed that you never heard the defendant quote the price for the sample that he was selling that wasn't in the video and that wasn't disputed and finally the rd argument he made that you didn't hear the one hundred dollars amount exhibits over the objection of the defendant i think that the and i would agree with that i would say that the end michelle motion to withdraw wasn't hot air or because it was premised on the idea that this could be a problem wasn't bad faith i mean i'm not saying you did it and they're not arguing you did it in order to screw them over you thought there might be a confrontation gore's problem but there really wasn't so the judge shouldn't have with don't withdraw on these exhibits correct i think that's approach procedure would have been not to offer the entire video exhibits yes your honor and i think ultimately that what was motivating the government was nothing nefarious it was the idea that this could be a real forty three problem it could be a confrontation clause problem ultimately however as the court has already alluded to there was no prejudice from this and the theory that the defense is closing argument was somehow undermined is simply not enough to establish prejudice in this context i point the court to the that the defendant cites in his brief in that case there was an instruction that the defendant requested that would have told the jury that a photo lineup with multiple potential suspects is more reliable than a single witness identification and the defendant requests that instruction and the the court said that it would give the defense's request instructions so the defendant in closing then proceeded to make that argument and read the instruction the court failed to deliver on that promise and then refused to give the instruction the defense counsel had already read even in that context this court how but that was insufficient to show prejudice and specifically the court said whatever l but what the court said and what this court said was that whatever loss of credibility the defense counsel may have suffered is not sufficient prejudice to merit reversal i think if even in that context that wasn't sufficient prejudice here that th what the video did record was the defendant quoting prices for what he called to be his best of the best methamphetamine the defendant then according to both the informant and the agent sold a sample of that best of the best methamphetamine the agent in the informant came away with that sample tested it found it to be indeed best of the best it was one hundred percent pure methamphetamine and that that's why the jury only deliberated for less than an hour here  went back to is the record indicate whether the jury had a recorder next to quezon now it does not because the some of the exhibits we have are transcripts yes your honor of the tapes and the transcripts i believe were not the evidence because these were english language recordings but i don't know that the transcript some back usually our practice is just to have them show into the jury during trial but not to send the transcripts back and so what i believe went back was the tapes but there is nothing in the record as i am i right in thinking that that some of the tapes or exchanges in spanish know that this conversation was in english or was in english yes i'm so so but we don't know whether the jury actually played the tapes they got there's nothing in this record to can tell us now i see that i still have three minutes but if the court doesn't have further questions i can send them thank you thank we'll give you that if for no oh just to respond to the court's question the confidential informant did testify ok that was stephen i just like to emphasize one point on the lead gaskins case the rule thirty prejudice is determined not error but prejudice is determined by whether the defense was substantially misled in formulating and presenting arguments without reference to how it may have affected the jury you look question you're trying to raise is about what the jury would have done in the jury room that's not necessarily true when you're talking about like but legal framework when you're talking about the jury instructions i mean that doesn't have a piece of wood they have looked at something the same way this  yes that's really the issue we've been sort of focusing on whether the absence of the tapes going back to the jury really substantially undermined the argument because the argument was was every bit as good with respect to the tapes that went back as with respect to the tapes it didn't well from the yes but from the council's perspective he thought it depended on the whole tapes plainly if he had known that the tapes would be withdrawn he would not have made it the st point of it is some ation look at those full tapes he would have come up perhaps with a different theory a different emphasis  n all sorts of other things he could have done so he we know that he i know on my talk we know that he was substantially impaired because he made it such a central part of its of his lamb versus harrington