good there are two issues before this court today which i would like to argue which serve to deprive the appellant of a fair trial the issues are significant the errors are not harmless and the issues that we will be discussing today are one that the government violated the appellant's fifth amendment right when it repetitively referenced edwards post arrest imposed around his silence during both direct examination cross examination and closing arguments and secondly that the district court abused its discretion by admitting statements made by appellant after coconspirator bruce was in custody the third issue that we argued in our brief dealt with the minimal role as opposed to minor role reduction and we will rely on our brief for that particular argument the government comments really relating to the appellant edwards post miranda silence constitutes misconduct and also constitutes reversible error the record clearly indicates that the coconspirator thomas bruce was detained and arrested at the heartfelt airport in atlanta in possession of a large edwards explanation about his arrival at the hotel room seems rather implausible yes rather it does so we with that in mind explain for me please about it is the story that he gave when he testified although there is no third circuit case on point there is a fifth circuit case which is instructive and was cited in our brief and that's chapman versus united states which is founded five forty seven fed second twelve forty and i call the court's attention to head coach six which is found a page of forty nine and there the court the fifth circuit said the results in these cases are easily harmonize when the prosecution uses defendant's post arrest silence to impeach and expose the tory story offered by defend that at trial and the prosecution directly links the implausibility of the if scope atory explanation was i'm a gopher i've been hired by by promoters of these rap and rock and ray guy people to be effectively their go for a cause they tell me to go do something i go to do it he testified i received a call that night to go to this hotel and pick up a suitcase i went to the hotel i picked up the suitcase i didn't look at what was it that was the story and then as the court continued in chapman when the prosecutor doesn't even directly tie the defendant silence to his ex girlfriend tori story when the prosecutor elicits the fact that exact a direct examination and then even refrained from commenting on it or to it again and the jury is never told of silence can be used for impeachment purposes reversible error results if the exculpatory story is not totally implausible mr or is i mean doesn't this really come down to what is a straightforward test at least in terms of the of the language of that test and that is that  we're talking about harmless error here all that has to be shown from your standpoint is that there was a reasonable possibility that the era contributed to the juries are in his and isn't that what our focus on to be in korea which says whether the guilty verdict actually rendered in the trial was surely unattributable to the average in other words the burden shifts to the prosecution or to the government establish beyond a reasonable doubt that they constant reference to the silence didn't somehow or other or couldn't have contributed to the verdict here what you really have is a one on one if there is no corroboration with regard to mr bruce's story the only evidence of knowledge or intend is bruce's testimony that while in the room which wasn't being  suitcase and that there was conversation with regard to the suitcase but there's no corroboration all the agents actually see in this particular case are mr edwards coming into the hotel going to the room and coming out of the room with a close suitcase there after any text or any kind of meat that goes into it is allegedly the conversation that takes place in the room with the cooperating co who is trying to work off the problem right then and there so so it's virtually impossible to call that kind of evidence over well all right let me ask you also  the curative instruction there was a curative instruction here so to speak was there not so why why in the defense of you did that not alleviate the problem with the error of first under curtis even if you were to give a curative instruction it doesn't necessarily solve the problem but here we have it an additional problem while the got martin is clearly says that there may be no dual violation where the trial court sustains an objection t curative instructions whenever a defendant's approach miranda warning silence is mentioned in the case if your honor bear with me for a second virtually every objection that was made by trial counsel with regard to instructions the jury is never informed that there was a curative instruction and in fact the court overruled the objection that was made during closing to the direct reference to the defendant's post arrest silence but then particularly strong instruction but the text of the instruction doesn't win the jurors of the right to remain silent that's correct but under united states for his woller he gave the wrong instruction and that's found a six fifty four fed reporter's third right so your position would be number one the instruction was late number two it was either to use you were wrong or to use chief judge mickey's characterization it wasn't particularly strong under woller wyler says that you're not was there any reaction but then you get in closing argument and jump up and down and dance on the fifth the mid south boggles the mind is something our expect from somebody who had arose out of raw schools juices were flowing and he was so intent to make the during trial and then a closing argument which comes back because the jury's attention to basically saying we're innocent person not saying anything in the under the circumstances how in the world could that not be hung for ever basically the only people that knew where the drug transactions going to take place was the agents mr gross mr samuel and the defendant is the edwards because their original hotel the supposed to been changed by the agents when mr bruce had been arrested so the only people that knew where the transaction would take place and i indicate what agents mr bruce or what he was picking the drugs up was someone who was in fact involved in the conspiracy and they told and words of the change in the location which is basically what his theory of defense is that he was a gopher and these other folks that he was running around getting in doing errands for but the  there is that he didn't claim he come there to pick up a suitcase he claims he came there to pick up a person that is mr bruce to move him from the hotel that he was in the super eight cannot the hotel and that's when the cross examination went into the fact that he had no reservations of any of the hotel he didn't know whether the other tower of the hotel had any rooms at all and he didn't know he was picking up mr jones i before i ask  question will not intending to pile on but simply join to church mickey in his expression of concern as to what happened here and it's an excuse  ask you because i'm still trying to figure out what else is here other than a swearing contest a credibility contest between edwards and bruce because if that's the case seems to me you've got a really really tough road to show that this was harmless or in addition to what i just indicated judge me keep you had the fact that the himself as dread and in fact during the examination of mister edwards at trial he admitted that he was known as dread that was his name additionally you have the testimony concerning the fact that the that when you said was arrived at the hotel he went straight to the door with mr bruce was located that the only people that knew that mr and mr bruce was in that particular room was many are you supposed to get and he indicated him six and that's exactly how many he left all right you let me turn to another matter you've heard the questions in the hand through your colleagues across the aisle here regarding the court's instruction the so called curative instruction do you really think that curative instruction helps you in your effort to demonstrate to us that this is a this was harmless  i think they did main thing with respect to whether the evidence is overwhelming goes to the point that mr edwards went to precisely where the transaction is going to take place the recording there was a concession that my client received information from a third party he named the third party and he was told to go to this hotel to go to that hotel room and to get mr bruce so i mean the fact that he went where he admitted that he said he was told to go for the purpose for which he stabbed them becomes a credibility issue and that's really the credibility of bruce or the credibility of of mr edwards and the jury  to draw a conclusion out of that that that's correct and that's why the instruction was so bad because the instructions the court gave sent to the jury that you could make a determination i credibility both based on what the evidence was and what was omitted and that this court has specifically said in prior cases that the use of the word omitted actually invites them to consider the fact that the defendant  it was just a very bad problem all around included with the inconsistent rulings by the trial judge when they had to weigh the testimony between bruce and and that of mr edwards i never informed that the objection should have been sustained and that they were to not to consider the argument made by mister mr jones during his closing argument so the cured of destruction cured nothing to the jury had no idea that there was a curative instruction it wasn't attached to anything and as a result you know a failure to do object there or even to suggest another instruction might have made a bad situation even