denying the rule twenty nine motion in considering the trial transcript and all the evidence that was presented this still evidence linking mr boyd the defendant in this case to the subject named in the prior convictions is found at the bottom of page one twenty seven of the trial transcript the pastor chick holding seems to however place some significance on that in that it seems that in the past such a case it's not until well after the case is over that they come up with this argument first as in the heat of the trial at the contradict it the government's evidence when in fact the government has the ultimate burden of proof and the defense has no burden to present any evidence and all the government has presented was an officer testifying that the individual whether you agree with that or not wasn't that part of the evidence that the court considered on the rule twenty nine that's not admitted into evidence for the jury to consider no i don't believe that that's an exhibit that goes into the jury room and the rule twenty nine motion is based on the evidence presented at the trial not on the other files the records in the case if it's not then a pastor job is controlling in this case and it may take the next step before this court or another court will change and also one thing i wanted to address your honor our position that skipper from the fifth circuit is actually the correct rule of law those three cases in all of those cases there was other evidence that was presented at the trial in huffines there was fingerprint evidence that was presented that the document and getting it if we can move to another issue for just a moment with respect to your claim of prosecutorial misconduct the record on the argument is pretty heavily excerpted first time i think council suggestion was a lot of the the judge may have known of the reference of to william boyd the third in a prior judgment and conviction documents that this is evidence that the jury would not have been aware of in the trial below that there was no reference to the defendant is william boyd the third or william boyd aka william boyd the third can you elaborate on that the document in the case is w case there was no evidence presented at trial to contradict that but this is the scene we employ the third nothing was presented with a simple argument by the defendant that was it  the argument and that that's a nice segue into the into the the last issue here of there being a crossing of the line by you during the argument you in a close case  court criticize what was done in castillo well the rule still is we have not crossed the line here this is not a griffin where the government has a right to point out the fact that the defendant right here i submit to you that there would be plenty of evidence of that so that i would agree with you on the other states talking about you know they can't they can that's not commenting on the defendant's right but when you point them right here that would be the closest one how do you respond on how do you respond on that that's just just referred to silence it refers to evidence ruben deals with testimony you know evidence or or or testimony from the defendant himself we're not talking about evidence from the family we're talking about any type of rebuttal evidence and heard you would have heard evidence of that the defendant would have called the apartment manager or what have you do you want to say with respect to that statement we want to make clear that this panel of three judges does not condon approve the government's argument in this case any comment on the absence of defense evidence beyond pointing out that the government's proof is one contradicted risks to speculation by a juror that the defendant must be guilty or else he would have to testify you can you can you can substitute i guess the phrase or else he would have produced evidence which seems to dovetail with what occurred here doesn't seem  that's far as issues not being raised and being surprised to hear it argument i believe the issue concerning the rule twenty nine motions whether there was any evidence presented that the individual sitting at counsel table was replete for the jury trial and was raised in on contradicted its comments like if it existed you bet it would be here which is implying that there is evidence out there and if it did exist it would be here well why isn't that a fair comment to i mean you can comment on the lack of the tory evidence presented on and you know i think particularly worth the claim of the counterfeit i put that i think that the ammunition found in boyd's possession could have been counterfeited well that pretty much invites the response so where is the evidence however i agree with that one if it does go more to the identification of the defendant though because that is something that would be in large part something that the jury would expect from the defendant like the steel case so in that context i believe that that went beyond what's acceptable and i believe that going back to the name and in pastor check what we have here is not similar names we have william boyd and william boyd the third which are distinctly different william boyd is not that unusual of a name these are at any time during the trial that you recall you sure of that yes they did convictions named william boyd the third specifically and the only evidence presented at trial was what was on the bottom of page one twenty seven where counsel for the government