please the court michelle jacobs for the defendant derek smith the district court despite the district court's decision excuse me allowing the government to admit thirty four recorded telephone calls and eight body recordings without a lyin allowing cross examination of the confidential informant and without any contemporaneous cautionary or explanatory instruction to the jury violated mr smith's rights under the confrontation clause this conviction should be vacated and the unconstitutional i'm asking why you start with the constitution rather than the your signature well i start in part because that's what was preserved and that was what the district court premised its decision in allowing the recordings to be presented i also relied on the court's decision and the address of your concurrence and the issue that was raised there in the decision in that case did indicate that he preserved well i mean it's premised on this court's decisions that this context exception this limited exception and that the government should be allowed to present at times limited salute i'm sorry did you try to call him as a witness we did not call him as a witness there was some discussion of whether or not he would be available as a witness in any event but under the supreme court's decision in melendez di if the prosecution decides to present the evidence and in this case they did and offer it for context as they did it is their burden the supreme court says to call the witness unless there is an actual exception that allows for the presentation of the evidence and here there is not this was this this kind it's the use of this context exception  about context i don't even understand what that is and just address the hearsay question which is what the supreme court has defined as the confrontation clause problem testimonial evidence offered for the truth of the matter stated in what way was the informant she got peroration offered for the truth of the matter stated there are a lot of examples that i'll just give a all and some of our in our brief obviously the january twenty six recording the government conceives forgot that the that smith in fact doesn't say much of anything in that in that recording it's a single spaced pages of transcript look but i th form and you time is short let me give you an example the supposedly informant says and this is recorded informant says i will pay you seven thousand dollars if you perform the following favor for me do you agree and the answer from smith is yes you status treatment being offered for the truth of the matter state is the informant's statement being offered this or the recorded conversation i've just giv was actually offering seven thousand it's not being offered as proof that the informant was genuinely offering seven pounds all right that's the truth of the matter stated that i will pay you seven pounds that's not what it's being offered for if your offer to show what the word yes is agreeing to the word yes she is the crime as i've said that's all right but if the informant is not testifying and not subject to cross examination then if the government suggests that they're not offering the informant side of the conversation for the truth of the matter asserted it has to be offered one person and i was always you want to ask him on procedure what i want to ask the informant on cross examination i would ask the informant what conversations for the six weeks of the investigation that preceded that statement were about because for six weeks before that statement was recorded on january twenty fourth cording to the record there were conversations between smith and the informant and whether there were conversations for example that the informant may have told him i have somebody who wants to make a campaign donation to you for seven thousand dollars i mean if that's the case yes that would be highly relevant and howley informative of what the january twenty fourth statement actually met me but that didn't happen because the informant wasn't produced at trial so that would be the kind of cross examination there is a lot of other things i mean the informant was and we provide some of the impeachment material that they wanted to get into with the informant in the brief you know stealing money having having contact with smith that's not recorded so again for every time the informant or dismiss something on a recording there's another contact between the informant and smith that the jury doesn't know about that would give i mean and i don't say this word context in the hearsay context but but it would give context to would inform the some of the informant statements was offered all have to be altered in some way better has nothing to do with come from no that's not what i mean and what i mean is that in the cross examination of the informant what inform the informant side of the conversations and smith side of the conversations this this defendant has a right under the confrontation clause to confront his accusers and the accuser here was the informant this court has recognized and we recognize this court is recognized in limited circumstances i mean the language of these cases if that this exception is limited for brief gaps in the testimony you know adams for example or walker these are very brief transcript excerpts in these cases where given your example that the informant side of the conversation may or may not be substantive  evidence against the defendant or it may provide context here this just swallows the rule the context of had swallows the confrontational up virtually any conversation i'm having a conversation with you my statements to inform what you're saying your statements and for what i'm saying they provide context but at some point that has to give to the defendant's rights a confrontation and here it did not and i don't know how the jury could passably have sorted out what was being offered for the truth and what not when there's no contemporaneous instruction whatsoever there's one boilerplate instruction at the end of the case that this court of warrant shouldn't be used as a boilerpla instruction the instructions should be concrete and and molded to the case in front of it the jury had i mean the stack is sitting right over there the jury had an inch then i would submit under the harmless beyond a reasonable doubt standard it absolutely is not harmless these factors will usually all of these recordings fall into that category o that you're concerned that well it's the cumulative amount and it's the jury's complete inability to understand how it would be able to use the evidence i mean how much beyond a reasonable doubt judge means it that the factors the court is supposed to consider it the importance of the evidence this was the foundation of the government's case whether they have it in says cumulative there's there's some other evidence i'm not going to say there's no evidence against smith but the evidence wasn't cumulative this was the evidence against him you know is there corroboration for the informant it's the recordings that that is the informant that's the only evidence and then the overall strength of the evidence gets the recordings and the statement you know that there was some other construction of the statement that was argued at the trial  campaign donation it wasn't paid until i say ten days i'm not sure that's exactly right but while after the letter was provided you know that there was something to argue about without these statements do i think that this is placed the work of counsel the morning of the defendants the statements that were admitted did not violate the hearsay rule and they did not violate the defendant's rights under the confrontation clause called the informant as a witness you're under your honor under my understanding from the record is that the defendant's lawyer spoke with the lawyer for the confidential informant and was advised that the company informant intended to take the fifth amendment and not testify so as a practical result the informant was not available to either party at trial so they will show you the fifth of them yes the as as indicated i was  know i don't know the answer to that question i'm sorry i don't know but he he wasn't he was not willing to testify and at that point the defense lawyer decided just drop it there was there was no examination of what the reasons were whether they could bring him to court and make sure that he had the proper right but the defendant's just dropped it and we had decided initially that we were not going to call him so this this really wasn't  an issue at that at that stage there was a little discussion toward the end of the case regarding the possibility of either getting access and instruction or arguing this in witness point but that was decided to be inappropriate and it was not done on how can you refuse to take the stand on the on the basis of this so if the venue and if the  pursued that course and determine whether the recall could have been did not chose not to be the most fundamental issue here is that none of these statements were offered for their truth in fact most of the statements that  the defendant complains about are statements that were made clear to the jury were not true they were statements about the the the basic facts of the trade the daycare center the daycare centers planned to apply for a grant to expand it operation the willingness to offer the day care centers willingness to offer seven thousand dollars in return for the latter none of those that it was very clear none of those statements were true and they were not offered for their truth at all and that's really the end of the discussion actually but they in fact they were offered the statements were offered to prove the defendant's statements and context the statement defended statements and his actions and every one of these every one of the statements that was offered  from the standpoint of the cia asked was precise fit precisely into the hypothetical the judge easterbrook offered which was i'm going to make this offer or they're going to make this offer for you will you accept it are you interested in it and some of those statements were were not did not question marks at the end of them but they nevertheless were offered to elicit a response from the defendant as to whether he was interested in pursuing it it was the defendant's statements whether it be yes or cash or chatter or seven stacks or chop here the defendant's statements were the ones that were incriminating and it was very obvious i think to the jury without having to parse through that the hearsay rule is very obvious to the the statements that the government was was focused on in terms of incrimination those were the defendant's statements those were the ones that were stressed those were the ones that most obviously demonstrated the defendant's crimin has pointed out here there was absolutely overwhelming evidence of the defendant's guilt in the form of his own statements on the tapes as well as in the form of a confession after the fact in the recovery of mark bills that were part of the seven thousand dollars payment to the defendant in return for the latter so any error there was no error but any error was clearly harmless beyond a reasonable doubt and without would indicated they chose not to call him and thereby avoided the confrontation that was so necessary to fully inform the defendant's statements here and with all of that i would just ask that the court vacate the defendant's conviction