narcotics it's our position that there are several serious errors during the prosecutor's closing argument that wanting a trial those errors should be reviewed under a plain air standard during his carville's credibility to his decision not to present evidence or testify to to briefly remind the court of the way in which i'm fine to here is how the prosecutor began the argument in question quote d i assume that there are maybe you can correct me but i would have thought that there would be plenty of other potential sources or at least some other potential sources of corroboration for that you if in fact those were only statement and if that's what or whatever what other what other than what other respect was his credibility if you the government is permitted to comment on the lack of evidence or you know it's a speculative defense correct  the defendant's credibility really can consider the fine and as a person and he if he in effect argued that mr mr possible cannot be believed because he did not present evidence or testify well how can you draw the conclusion when the government went on after saying that consider the defendants credibility to make clear don't get me wrong he doesn't have to do anything if he doesn't want to he doesn't have to testify or none of that and then on top of that the district court and its instructions to the jury reiterated that the defendant doesn't have to testify and gave guidance on how the jury should consider that personal you statement yes judgment that that's a fair question and it's actually i don't think it would be fair to say that the prosecutor did this intentionally and it does appear that that he taught himself and he tried to correct it but in so doing he actually made it worse he went on from from some saying that mr and every other car places significant value on jury instructions but but as for the joints russians president is also clear that your instructions are not ordinarily sufficient to your constitutional possibles out of court statements using the witness credibility jury instruction that was the wrong instruction and the government conceded in the brief and instructing the jury to analyze mr  jury instruction for evaluating that statement how do you get around the fact that the court again at the end instructed the jury how it should consider that statement and the court made crystal clear that the court's instructions on the home for personal use so you know i don't think there is any recovering from that once once you places his credibility as a defendant as a person and issue and and also that argument by exchange that came in between the defendant and his brother's phone number that somebody was looking for him a sufficient basis to make that statement about again it was about the brother not the defendant  s and it would have been a powerful piece of evidence that that mr hasse was operating a stash house but all they had was mr cars all being asked if if he  someone else had presumably narcotics and mr cardwell provided that person with a phone number that is just too large of a leap to to be able to be a logical and friends and he's operating a stash right sounds like little brother is operating a stash house that's connected to mr kurz well because mr kurz will provide the phone so the other guy can take care that's pretty fair that's what the text seems to imply to states as my opponent pointed out at the beginning of his argument the flannery issue in this case was wondering not mr carr as well intended to distribute your months hero was found a house that was no dispute that he knew about it and so that was the primary issue in this case the primary evidence that supported his theory that he was only a user and not a distributor of heroin was his own out of court statement to major scandal or that he a drug distributor so it is permissible for the government to make essentially all of the comments that my one complains about he was the prosecutor in this case was commenting about the defendant out of court statement and in fact at the very top of page thirty five of the line for a closing argument he says that he brings the issue the defendant when asked during the interview he didn't say he used heroin the day before he said they smoked marijuana with the last twenty four hours and then he goes on to explain the reasons not to believe that consider the defendant's probability so this is all being framed in the context of an out of court statement as as a judge  pleaded that up by saying he doesn't have to testify and the court more clearly stated that and instructions as far as the the other instances that you know they don't believe there was any error in the district in the how prosecutors discussion of the instructions all of the factors in the witness instruction apply to this statement and the instruction set you should  of billy an opportunity to see and hear what he was talking about his memory his demeanor whether he had bias or prejudice which it clearly did he clearly had reasons with the government at his door to come up with statements and certainly again the standard here is playing error to the extent that any of these statements in the time text of this closing argument could have been taken out of countenance the assumption is that the defense attorney is the one who is there to record if the court has any particular questions about any of those statements that were made or any of that i'm happy to address the civic statements otherwise there was an error in any of the