implicitly indicating there are two separate individuals here not finding that there was a conspiracy not fighting there was a joint joint decision between the two of them to  antagonistic defenses it's very clear and at trial were there not co defendants i would not i would not have been proscribed by the court from stating and comparison it was it was i was limited by the court in a way that i think infringed on mr moore his sixth amendment right because of the sacred right of mr mangia gonz fifth amendment right i don't i don't  not why we're limited i was prescribe because i was not allowed by the spy the district court to comment that mr where it's at the stand he subjected himself to cross examination or he decided to testify specifically said that those types of statements would infringe on mr mangia guns fifteen them right there were statements i was able to make but those statements i was prescribed for making and it was difficult because i'm the only one i know it may seem simple to us but not necessarily to a lay jury i needed to make those arguments to draw that distinction and so i'm before the court  and i'd like to begin by posing a hypothetical i'd like to imagine that two young men participate are tried for two drug runs just like the drug run at issue in this case on two different dates they're separate events they're tried jointly two young men imagine that both of them face a ten year mandatory minimum on each of the drug runs and imagine that one of the defendants defendant number one testifies at trial that he was fully participating as a as a guilty person and one of the drug runs just as the government alleges but that he knew nothing about the second drug run and that that was all the fault of defendant number two in that situation defendant number one is testifying one hundred percent consistent with the government's theory about one of the drug runs but what completely inconsistency inconsistent with the government on the second drug  in that case it would be obvious that because defendant number one supports the government's theory we should be able to confront him with the fact that he's facing a mandatory minimum not just on one but on both of the of the substantive counts and that's what happened here taking away one of the drug runs in other words just as in larson we have a situation in which one of the defendants is giving information contributing to the fury of the government in a way that flushes out the government's case now the government can put the question is what are you allowed how to confront him with his obvious motive to lie or what you have to be able to say about that well where the person is himself on trial is his motive to lie pretty obvious in other words if when you have a former testifying who isn't him self on trial there was out very specific information then jury really can't judge what why this guy would be doing it  but but when he's actually on trial himself there's and that's i'm very nave it seems to mean that the motive to lie is pretty obvious i don't think so your honor in the abstract it is and perhaps i'm talking from the trenches here as a trial lawyer juries of course know that that and a defendant has a motive to lie to avoid a conviction but is that motive to avoid a six month sentence a five year sentence or a twenty year sentence and one of the things that district courts constantly do because it's the law in the have to do it is to remind yuri's punishment is my duty it's not your duty you don't worry about it and so a jury is not only unaware of the ten year mandatory minimum but it also told not to think in those terms it all seems to me that there was confrontation look the trial judge was faced with a bit of a dilemma that he had it really that between fifteen minute rights with the being prosecuted in one trial and it seemed like he really did a pretty good job to me and there was confrontation you look clean does that he should have been allowed to say and years ago that's your whole case yes your honor i agree that there was a confrontation the question is was there enough content confrontation and there is no the jury convicted the guy that's true but a jury convicted him after deliberations that lasted longer than the taking of evidence splitting a verdict and sending out five notes this was a very very very close call for mr mondale got and there is no principled difference between the rule enunciated in lars and the situation here the only real difference is that in larson it's somebody called by the government and in this case it's somebody who calls himself but that distinction actually cuts in our favor because if the jury had believed more gone about his himself and modern gone then mr moria the co defense i would have walked away clean with not a day in jail whereas a cooperator in the larsen scenario gets some sort of reduction so imagine this is a cooperator scenario that person has the incentive to lie to get down from a ten year mandatory minimum to maybe something like eight seven six five in this case if more is believed is incentive is even greater but the enunciated here and i think judge charger is a terrific judge and i enjoy trying cases in his courtroom but i think he got this one wrong because the jury actually needed to know more in this scenario what what they need to know it seems to me that the extreme impeachment type evidence which mr moore you didn't have but mr lemaire did have a martian and still the larson court held because of the mandatory nature of the penalty that the jury should have known about it and that's exactly our case and what larson held was because of the mandatory nature of of the of the sentence that lemaire was facing larson should have been able to confront the amir with that mandatory minimum that's exactly what i'm saying here there is no difference i have to check that out and i don't see where that's really relevant here but will check it out yes your honor please do because because the issue of larson was whether or not there was an unconstitutional restriction on the scope of cross because there was a mandatory minimum that lemaire was facing and in that case the district court had not allowed cross on the mandatory minimum and the court but a lot lots of other cross and that and the court of appeal so that's not enough t is a matter of law that it was you all with the district court judge not to allow questions about the fact that he was facing it in the sentence yes i think it's an abuse of discretion that's the standard and that the exact same situation was looked at sentence that was to which the cooperator it was going to be yes object to the to the defendant yes i believe so you are not as they were charged in the same conspiracy and that's where the beardsley factors come in and one of the factors the second factor is whether or not there's any way to deal with this and this is dealt with day in day out across the country in district courts as your honor knows with a curative instruction saying don't look at that that's done it day in day out in every single case where this happens with a cooperate or with the government cooperate or it could have the same instruction put it over here that you will send me this seems that the district court should have some discretion i would agree with you he didn't allow any question at all to attack his you know credibility to deal with the issue of punishment but the this record judge was faced with a sticky wicket to try to balance these respect the rights that's what we do all the time yes and i think judge good struggled with this and he called it a close call but he didn't let me cross on prison time he let me cross on a serious federal drug crime and that is not enough it's not enough under larson and it's not enough for a jury in terms rejected the conspiracy charge because they say ok we believe more that he didn't know before they got to los angeles but once they got to los angeles he became an aider and abettor that's put that's totally consistent with with the jury's verdict we cannot conspiracy because there was no agreement if what the court is saying is correct then there was a compromised verdict which means that more jurors were struggling with not convicting at all which underlines how close a case this was how close a call this was for the jury and my time is up your own i wish that i good morning your honour's jonas lemon for the united states i'll start briefly with the severance issue the defendants have cited no case where this court has required severance on comparable facts i want to underscore that this was a conspiracy this court said just last are intertwined because the ten year mandatory minimum issue and the closing argument about monica in silence those that's the claim of prejudice that the defendants say that severance would have cured but so beginning with the ten year mandatory minimum mr mondrian's counsel absolutely still got it got to cross more thoroughly about his motivations to lie including not just his desire to avoid a serious federal conviction but also a serious federal conviction that could ruin his life and take  done in cases where that the the the witness is not a cooperator testifying for the government in the hope of a government benefit and he conceded that he has conceded that he is no authority from any court where any  defendant testifying solely on his own behalf where any court of appeals has ever said that the confrontation right allows a co defendant's counsel to question him about the mandatory minimum his his leading case is larson and i think it's worth taking a moment on the larson because mr bell is a friend of mine but i think he has misrepresented the holding of larson to this court on page nineteen of his opening brief he says that this court reversed and larson that's not true this  affirmed and larson larson's holding is limited in a couple of respects that don't apply here so there were two cooperating witnesses in larson one was facing a five year mandatory minimum the other was facing a life mandatory minimum the district court did not allow cross examination about either of those mandatory minimums as to the first cooperate or the one facing a five year mandatory minimum this court found that there was no confrontation clause violation there was no abuse of discretion by the district court because the jury still had enough information to evaluate that cooperators credibility now as to the other the other cooperating witness testifying for the government that cooperate or was facing a life mandatory minimum sentence and this court made clear that a life mandatory minimum sentence is different that cooperator had an overwhelming desire to testify to the government satisfaction to support the government's case and that that that put that cooperate in a different category but even there this court found that the error was harmless beyond a reasonable doubt here mr moyo was not a government cooperators he testified adverse to the government and the idea that his testimony was somehow helpful to the government or that we needed him to convict mr munder again is just not borne out by the record recall that again he kept getting into a crouched position he was sitting on the curb and kept getting into a crouch and the officer had to keep reminding him i think three times to sit back down on the curb and then when the officer took the bag the target bag full of methamphetamine out of the car and showed it to the other officer takes off running down the street and he sneaks through a hole in a roadside fence and escapes it doesn't end there the evidence against mr mondrian recall also his jail calls so his theory is i had no idea there were drugs in the car mr moya brought the drugs into the car without my knowledge right look at his first two jail calls they are to mr moya's cousin daniel he asks mr moyers cousin daniel for daniel's help in creating a phony title transfer to hide the ownership of the mercedes he asks mr moyers cousin daniel for help getting mr moderate and mr my out on bail so this is not the behavior of someone who whose friend supposedly just brought two and a half kilos of methamphetamine into a car without his knowledge there was ample independent evidence against mr mondrian that had nothing whatsoever to do with mr morris testimony and the jury recognized mr moyer as a liar that's why they convicted him and the course the problem was that the jury also disbelieved mr mondrian's defense but again that's not surprising because there was ample independent evidence of mr mondrian's guilt so the the bedrock rule is the juries are not to consider punishment this court said for example and it has long been the law that it's inappropriate for a jury to consider or be informed of the consequences of the verdict and in shannon the supreme court said that telling the jury about that creates a strong possibility of confusion so the district was well within its discretion  to allow the questioning about wanting to avoid a serious federal conviction that would ruin mr moore his life but but precluding mr mondrian's counsel from questioning him about the specific mandatory minimum that both defendants faced  the mr moyers issue about so i take it his theory is that in a joint trial if one defendant testifies the testifying defendant's attorney has a right to commit a griffin there and that otherwise severance  was so the district court ruled that moyes counsel quote and this is that two seventy two can obviously focus heavily on his client's testimony and what he said on the stand and his demeanor and what not but i don't see any reason why counsel should be allowed to in my notes i have an ellipsis but make arguments about his client's choice to testify and the significance of his choice to testify so that's your to seventy two there's some more discussion and then that you are to seventy five he's addressing mr wise counsel so you can say that he answered their questions look the government in the face down the government whatever the court continued but to the extent that you are saying he subjected himself to cross examination by the government you're making reference to his choice in this context that would be inappropriate innocent and he testified that he didn't know there were drugs in the car he took the witness stand under oath and told you that that's the evidence in this case you're to treat that evidence is like you would treat any other piece of evidence you've heard that instruction that's evidence the only person that came on this witness stand to tell you whether he did or did not possess it was lenny way him self nobody else said that he did but he said that he didn't that's the actual evidence in this case that's at five thirty six so he absolutely got the chance to highlight his client's testimony to the jury and  those lines from mr moyes councils closing argument need to be read in context and they were about the weakness of the supposed weakness of the government's case that there was no d n a evidence no fingerprints and so forth but the argument was not manifestly intended to comment on mr monarch in silence and that's this court standard there was no direct comment on mr mondrian's not testifying and that's that language is from marina noone yes and i think it's helpful to look at the types of closing arguments that this court or a codefendant is improper in marina and you know as the comment from defense counsel was that his client quote had the guts to take the stand and withstand cross examination and he went on from there this court held that that comment didn't cross the line and didn't require reversal it wasn't a direct comment on silence in the law no this court considered an argument from a defense counsel who said that his client quote sat up in that chair for almost twenty hours and let everybody take a shot at him and this court said that didn't cross the line because it implicated the codefendant silence only indirectly and then maybe the most extreme example is in patterson where the defense attorney said that his client quote is different than the other defendants in this case he's different for one reason among many but the reason is that he is taking the stand and faced his accusers he's allowed himself to be cross examined he has no obligation to do that in this country and this court held that that comment was improper but that it wasn't reversible  but even if there was a griffin error here it was cured by the unchallenged jury instructions and that applies to all the claims here actually that as a severance as everything that the district court gave careful and repeated and unchallenged jury instructions  about you know a defendant not having any obligation to take the stand about the jury's obligation to consider the evidence against each defendant separately and so on mr minor going did not object so mr munder going to check to add to this comment by mr moore as counsel in closing argument and they had a sidebar but mr munder going to not ask for any additional curative instruction there he didn't argue that the instructions given by the court were inadequate and so the district did not plainly  seeing three seconds they have a minute and three seconds thank you very much your honor i would ask the court to look at vargas vargas is a case cited in our brief and it lays out exactly why there is error here why the government cannot show that if there was a constitutional violation that it was not harmless beyond a reasonable doubt in that case it was a cooperator case not a codefendant case in the vargas case a man named ramirez testified ramirez the government could have proved their case without ramirez but that wasn't the analogous of the circuit in this case the circuit court said look we don't we're not looking to see whether or not there could have been a conviction we're going witness by witness and we're looking to see whether or not ramirez his testimony contributed to the government's theory and to the government's evidence and it did and that 's the vargas case and what i'm what i'm saying about that applies to this case because here the government had no theory as to how the package got in the car and that's what more you gave them and it