appellant may timely motion for disclosure of a confidential informant this confidential informant was the basis of a warrant that had been issued for his personal or search as well as a search of an apartment in oakland on apricot street and at that time the government well called rove the arrow privilege saying we choose not to disclose who this informant is we're not going to put on any evidence about the informant and we're going to rely solely on what was found at the apartment during the search and what happened at trial that raises a problem here is that the prosecution as part of its strategy of trying this case and i think this comes apparent from looking at how that takes one from beginning to end part of the strategy of trying the case was we need to explain that there is more to this case than just what was f apartment what was found at the apartment i think makes a very clear and convincing case that someone was selling drugs out of the apartment based on the firearms and the drugs that were found there so the real issue was was this something that mr dunbar was doing from the apartment given that she wasn't the primary occupant certainly of the apartment and so the officer was called to say well we had a warrant and that testimony it was immediately picked up upon by the jury i understand the sequence correctly that there's a warrant that's based on a confidential informant you move pretrial but there will be no mention of now fill in the blanks for me no mention of anything from the informant and the government agreed to that that was a clear agreement  on the record my understanding is what the court said with you can't mention any of the transactions between the c i and the detained right that's true that's exactly what the  what the court does it tell me how they violated the government all right well we have testimony about a warrant first which i was just explaining and so we need to consider what goes into that i suppose that the first thing you argue is the mere mention of the warrant mr scarily violates the court order i'm not sure if that's true and i think in looking at what happened in th are several ways the problem can and should have been approached for instance possibly could have been mentioned we had a warrant to search the apartment i think that would be neutral with respect to mr dunbar the way it has actually came out we had a war for mr dunbar and for him being at that apartment that was all presented this testimony and the argument in the end from the prosecution so it was directed specifically at saying well we had a reason to be looking for mr dunbar to be running a drug business at that location and that's really the problem here is when you get this warrant being introduced and then the judge instructing the jury as the judge this well the fact that there is a warrant means that a judge somewhere has determined the trouble cost for it there's really no way to cross examine that certainly you can't bring in the issuing judge on the warrant to say your honor why did you wish to do this so there's  there are several proper ways that could have been done here one would be simply to instruct the jury because i don't think there was any dispute here the officers were conducting a lawful surveillance of the premises at the time this is what they observed and th what led them to make the arrest and do the search i mean i think that would have been a very neutral way to set the context i do agree that there is a need to set the context for why were they there why were they looking at what happened this apartment why did they decide to stop mr dunbar why did they take him back to the apartment and search him as well as the apartment i think they could have also the judge could very well also have made a ruling that there was a search warrant for the apartment which the officers w in the process of serving when they observed this so they would search all the occupants of the apartment i think that would not taint this trial fundamentally and i think that's the problem is the trial was tainted by  both in the evidence and in the argument and in the instruction that there is more that we know about mr dunbar that isn't in evidence here and that's exactly what the jury came back and asked i mean with remarkable the jury came back with a question right during the evidence saying well why why was this why was this warrant issued did they get the police military of time that they wanted to get vernon dunbar that's a question that the asked i mean there's clearly a strong impact that was made from learning about this warrant and i don't believe that that question was handled properly because that at that point the judge clearly should have taken in into the reigns of saying the jury should not draw any conclusions this is soley to explain why the officers were in the area instead what we get is an instruction that essentially says to the jury yes your suspicions are correct a judge somewhere has found that there is probable cause because that's what the jury was instructed that the fact that there's a warrant means a judge somewhere is found probable cause but there's really no way for mr dunbar to go into that subject bring to bear some cross examination because i'm certain dunbar does not agree that there was probable cause i'm certain mr dunbar would like to have a chance to go through what the confidential informant had said and say this is not correct you're not telling the truth you have other crimes that you're trying to get bargaining consideration i mean those are typical issues that we have when the formants none of which really are fully explained in the record here you know if you're which i brought to the court's attention basically saying it's in this context of explaining why the officers were there it is best not to put this cloud of criminality around the defendant that's really what happened here and there's a case called that there was something totally outside the record that caused the authors to be looking for specifically this dependent there's another case called gomez from the circuit where the informant said the owner of the marijuana would be riding in a red ford and that's all that was ever said about the informant and the court again says that's the that's an error because it's telling the jury there's an informant there's other information out there that would tend to corroborate the arguments that are being made by the prosecution and although here i would agree we don't if we had a situation where the actual warrant affidavit was in evidence then i think we would be squarely within crawford because clearly that would be what crawford is calling testimonial statements that aren't necessarily sworn in but are close enough to being like testimony that it presents a confrontation problem you're down to four minutes did you want to address the other issues or would you like to sort of adds to the problem here i mean the basic problem is how far is the government in this case going to be allowed to push the envelope where really the attorney is is really not doing anything to  make objections that seem to be called for and i pointed that out in the brief i mean that one of the questions was kind of like i could be used in a wall school  regarding the defendant's prior experience with guns prosecution asked do you remember telling pauline williams i'll go to jail for murder because you'll be one dead bitch as you threaten her with a black nine millimeter hand i mean that's that's kind of abuse and that sort of pervaded the examination of mr mr dunbar on cross so i've made the argument on that and i will reserve the rest of my time thank you for from the government at this time close on the court my name is sharon van zyl i represent the united states on this appeal i'd like to begin by highlighting a few points of respect to the informant issue i think it's important to keep in mind that this is claimed on that word and it is against the defendant at trial and i think perhaps for obvious reasons as we're pointed out by the court the public doesn't focus on the testimony and that's because the testimony was in fact very limited they were very limited represent references to the existence of a search warrant no reference to probable cause no reference even to the existence of a confidential informant much less the informant statements to law enforcement or that the informant had provided there's a search warrant already linking the defendant to this area to this particular apartment and that in some ways is just testimonial it's coming it's coming from the government but it's an inference that jury's question in addition to the prosecutor's arguments neither of those were objected to with a better response the venue should conclude nothing but that the officers had a right to be there perhaps that might have been a better response but the response of the district court gave was not plain error it was an instruction that was explicitly approved by the depend upon the defense counsel here and it was merely an explanation of the law it gave sworn judge or magistrate looked carefully at evidence presented to him or her by these officers and concluded that they should move on to the court and look for them i think that would have been a problem but it's clearly not what question from the jury the court instructed the jury it's usually the lawyers job to ask questions and that's because you're only supposed to consider the evidence as it comes in through the presentation of the parties and again at the end of the case the court instructed the there was no objection so this is reviewed plainer in that respect and importantly i don't think it causes a confrontation clause problem what it may cause is some concern that there was a reference to evidence outside the record but in any event the isolated statement by the prosecutor a reference to the search warrant linking the defendant to the apartment it was listed as one of many factors that tied the defendant to the location just the context in which it was recited to  said dunbar kept the safe there the drugs and the money inside the safe for his that was consistent with her statement upon her arrest that was essentially the same thing in addition the prosecutor noted during closing and testimony at trial also inside the bedroom had dunbar's name on it in addition the prosecutor noted in that closing in its laundry list of things in which the warrant was mentioned that the defendant gave a false statement upon his arrest showing his consciousness of guilt he said i don't know anything about this apartment i've never been here before he admitted on the stand that he lied when he made that statement and in addition the prosecutor brought out in its closing as the evidence show during trial that the defense theory was thoroughly impeached during the trial the defendant had claimed that he had been at the apartment using drugs just before he was stopped by the police but he showed no signs of being under the influence and had no drug paraphernalia on him and his theory that his codefendant abrams and her boyfriend were the ones drugs was also contradicted by testimony by abrams and her boyfriend himself so i think in the context of all of that evidence we have a prosecutor making that reference the jury was told by the judge that the lawyers arguments were not evidence and the verdict should not be based on any arguments and again there was no objection so the court did not have an opportunity to ameliorate any error that that isolated re caused but importantly that's reviewed for plane air and the burden is on the defendant to show that that single reference in a trial full of substantial additional evidence evidence against the defendant was proper in light of the direct examination on that very same subject the direct brought out all of the details that were also covered by the government that's not really disputed with respect to the one thousand nine hundred sixty incident i think the court it the court also later in the instructions at the end of the clay case instructed the jury not to consider any stricken testimony while so during its verdict and not to consider questions or argument by counsel  and if you take a look at that you'll see that all of the information in there other than the officers background really comes from a confidential informant so it's not like the jury didn't have a warrant no they didn't have the application all they know is originally and i  think that the government's accurately quoted the initial questioning of the officer about the two warrants but then the instruction that the jury hears from the bench after asking this question the jury question  that just put this in context the jury asked why did the police know ahead of time that they wanted to get vernon dunbar had they watched him dealing somewhere besides just going in and out of robin abrams house that's the question they asked within two hours of testimony that was quoted response from the judge is there's been discussions of search warrants and probation searches i just wanted to tell you that a niggling obtains search warrant is one that timed by a judge after that judge has reviewed the warrant to make a legal conclusion that probable cause for the search warrant exists i would submit that's not all that much different from the hypothetical that but is there anything about a confidential informant  closing argument by the government but what's what the problem what the judge said well i don't think it addressed the question in the proper way in the context almost says the answer the question is yes there is other information because it's thing well there's a search warrant because the judge has found that there's probable cause i think it's not an incorrect statement it's just the right statement but in answer to the wrong question the question is going to come is the prized to a jury that not everything the government might know about a case would be there i think it's a very bad idea to encourage that kind of speculation by the jury by the district court well why not as as was suggested an earlier argument by not more explicitly saying this is only to explain why the officers were at the scene he should give no other consideration that would have been a better instruction and there's really no need to talk about why search warrants issued that really isn't relevant to anything the jury is properly considering so all of the  statement it's not in this context what should be said and i think there's a need for this court to explain this because just as judge like went out there really isn't any precedent that would guide the court on how to approach this situation i think we may need something  didn't complain about this instruction you're over your time i think both counsel for their arguments he's just or good will be submitted for decision who moved to the next case on the calendar which is united states against