the comments of the district court and of the records of reporters transcript of aug twelfth though to page twenty four lines eleven through twenty five in which the district court indicated that it believed that the  the evidence that was introduced is characterized by that the appellant as for for be material but by the government as rebuttal evidence was too remote in time and not similar enough to be four for being so then we come targeted you because you're stalling before a court to me seems to make that quite clear still what's wrong with that theory and didn't you in fact open the door for that evidence i was going to come to that right now and it's a very good question your honor the question is who opened the door and i believe that is a factual consideration and under the standards under united states versus chrisman that any statements must be because the real issue comes down to whether my cross examination of agent which would be found in the transcript of april mind oh to pay just thirty five my nine through page thirty eight line twelve in fact opened the i was put in a position in which no matter what i did in trial and i say as defense counsel that evidence was going to come in it was going to come in for for being material of my client testified or if i put on any witnesses character witnesses are going to come in because the government prior to trial the the day of trial but i actually filed a motion the day before and asked to put that evidence in for character witnesses were there for on behalf of my client so i was put in a box and i have to say that was very good legal maneuvering by the government the question about that but the same time it comes down to whether or not this evidence was sufficiently probative as opposed to prejudicial and whether or not it is in fact went to a conspiracy that actually seems like a fairly common for a form pressuring well then if i get this far i'm starting to cut off your honor then you have to look at the criteria for a four or four being which would be prior material proof material element similar to the crime charge sufficient evidence of the crime of the better and not true remote and even the district court found that it was too remote and wasn't similar so under it so it couldn't really come under four for me according to the district court bottom line as it was and i suspect listen if there's more prejudicial than probative to the offense for which he was charged here we're talking three years later one was allegedly theft of monies postal inspector day went to whether or not he never in allegations of stolen packages a year earlier my client at that time was an off duty status because of the difficulties caravan and ours bringing out only that although they had packages still in it could not have been my client the issue then comes down to that open the door or if they didn't open the door for conspiracy and set up the first indication of any alleged conspiracy the first time conspiracy actually came first by their own witnesses so we didn't put this in but once we got to the point where this is in evidence in the government's case in chief and that we had to have some kind of response because the issue of a conspiracy in the set up was already put into the record so you can if the court has no further questions unless i would like to briefly touch upon the second issue which is the three c one point one enhancement for two points taking the statements that he would in this particular case the government argued for two points and received that then he asked me does he have some significance because it makes a difference whether or not the this package was open they just didn't believe but i believe there was not sufficient evidence even by a preponderance of the evidence which is the standard show that he was lying he was telling his story the way he thought that it occurred and i think was  sentenced within the range that the court said he was eligible for he got sense to out to a much lesser period so one of the collateral consequences what are the consequences to your client of having gotten the benefit of the district court's large  with the two points the court was required to go under is going to be which means he had to have prison time and had to have or and combine with with home confinement or correction center if it had been a zone a with those two points off the court would not have been found to do that i can't say the court wouldn't done that but the court was required by law to do that so the work lateral thanks to counsel find that the court has erred there what was the appropriate remedy for us to do is to send them back to the district court and let the district six to ten your honor and then give him ten months instead of the two months he got i don't believe that the court can do that at this point i believe it would have to stay within the same sentence or reduce it although in all due respect to the court he's already served  would i would argue for a lesser sentence but in terms of the impracticality i know the judge and i also know what he said in sentencing and and frankly i'd have to say if we went back you probably sense the same thing going fair and honest with all that well but i think we'll hear from the government now parcels but not just any missing parcel complaints of missing cell phone and that was the government's case the defendants injected into this trial a conspiracy theory and this have been this defendant thing and he was actually cross examined a page five mr bogart stated i believe clearly that mr boody young was set up that's the first time those words come in and then he cross examined inspector that and when he does that he brings up to his client's investigating him and one of the things the inspectors didn't know was that julie pharaoh's who testified had actually done an audit prior to the time that the ten ninety one cards that the inspectors needed with regard to that pa twenty years and she recognized his handwriting and he was he took approximately thirteen thousand dollars of postdocs right receipts for her calculation and the other thing that i want to stress here today which is the the whole matter is that this is a trial tactic by defense counsel as i stated he opened it he mentioned this in the opening statement and he then opened the door on the cross examination of  and if you look at s c r thirty five defense counsel says i believe i did open the door i have no question about that i have no question about that today he says that that was in the heat of battle but if you take a look at supplemental excerpt of record one forty three months later he's at the sentencing and he admits to judge the potter that this was a trial tactic that he knew the defendant was going to testify and that's why he drew the sting first which is completely consistent with him talking about it and opening statement and of course completely consistent with his cross examination of inspector dant and then if you also look at the defendant's excerpt of record at page sixty ju bogart thank you says i don't disagree with you i don't disagree with you if you're is redundant saying now whether the rebuttal evidence comes in but if you put on julie pharaoh's either either let the government put on  still because otherwise it's going to be redundant so it cannot object to the republic of events but rather that it's done in this case so three times the defense counsel conceded and one time clearly on the record that he had no objection apologize i got it wrong in the supplemental excerpts record but the pages from april eleventh two thousand and two are one forty seven one fifty six defense counsel on cross examination of machine brought out a whole nother for a four b act that the government never intended to offer knew of but never intended to offer hooking up his clients with missing parcels at this satellite unit so that the error interjected by this by this defendant in his own trial was was huge with regard to the points for obstruction of justice or perjury actually what the defendant mr bogart stated six to ten months actually if he received a few extra points he's not going to get any different sentence and if he comes back i'm not going to sentence him any differently i mean the defendant considering the fact that he blatantly perjured himself on the witness stand received a hugely wein sons he was only two months with four months of electronic monitoring he's out of prison now and so there's absolutely no prejudice for the perjury point and again he  just if his defendant testified but if his defendant testified that they were unduly unfairly picking on him so he was not boxed in the defendant could have testified truthfully and as a matter of necessarily conducted a four or three analysis on this evidence by first clue doing it as for for be our evidence and then determining that it would become more probative than probably prejudicial if the defendant scales and injected a conspiracy theory which is exactly exactly what this defendant did in this case so i strongly disagree with mr bulger that he had no choice he had every choice to just let the government put on their  and necessarily meet their burden without putting his client on to perjure himself as mr bogart stated the government was the first to bring up the star that's absolutely not cracked mr bogart as i mentioned this in his opening statement and that was the theme through his cross examination of dance through the defendant's testimony that he had suspicions that people were trying to set him up and that was specifically because of the missing monies that are missing  has repeatedly stated that i said certain things in the opening statement i would ask the court to reflect that is not in the record is not the designated and i personally don't have any recollection of that  find some difficulty in trying to respond to something that is not in the record and is not investigated the issue as i stated earlier i believe that the court can determine whether or not the defendant opened the door by looking at the transcript of the trial transcript of evil nine o two pages thirty five why no and through page thirty eight line twelve and if that is not sufficient that