good morning your honour's my name's then coleman i represent the ellen salvatore calls i was going to start with the cluster of four or four b issues and was going to st start off with the fact that the government has conceded error in this case the government can unusual situation because perhaps the best indication that the error was not harmless is that the district judge specifically commented that it was a remarkable trial and it probably could have gone either way that to  think a strong indication that it was a close case and an error like this in important social error is not harmless in the government the burden is on the government to show harmless error and that they cannot satisfy that burden on so far that it's hard to know though what to read into the district court's comment because it was a sort of fleeting tom and sentencing it wasn't a comment directly on the the quantum of evidence necessarily i don't read it that way and then when you look at the evidence itself i think the argument encounters some difficulty it is the government's burden but here there was evidence that he transported four and a half one million dollars worth of fat no of a highly toxic drug he was found with the drugs in his car there was an odor emanating masking agent you had the inconsistent statements to the law enforcement and so when you actually look at the at the evidence doesn't it doesn't present issues for the point you're making well i just think in the nd part of that question st i believe that the evidence in this case was no stronger than the evidence in many other cases where this court has found harmful error in similar type border had made inconsistent statements and frankly a somewhat ridiculous statement to the officers at the time of the arrest here there really were knowing consistent statements made by mr acosta but in any event we have cases like  sure i agree with that i mean there were some statements that he made about where he was going that were inconsistent and that sounded at the very least questionable to the law enforcement so we do have that i think the inconsistency is certainly  to create some inconsistency there but i think his his famous were generally consistent that he was headed to work at the pajama resort which is where he in fact worked but even if there is that slight you want to say there's a slight inconsistency there we have being case foster another th circuit case career we've cited a list of them these are border cases under virtually identical facts where this court has found that errors were not harmless that the evidence wasn't so overwhelming and getting back to the st point about was the judge's comments somewhat you know vague or maybe they were taking it out of context you know i think i don't think it's vague in the sense that the judge said the trial could have gone either way  and this is the judge that had an opportunity to evaluate mr costas testimony got to look at him face to face and evidently the judge felt something about the facts of the case in the way he came in that he felt the case could have gone either way i think that that means i think the only reasonable interpretation is that is that the jury could have gone either way but i know you mentioned the judge's comment that the fact that the jurors deliberated and deliberate conviction within  three hours and that's it just the evidence was pretty overwhelming and i think the one i doesn't i mean you may say might have been a four for evidence that somehow nudged the jury to deliver a verdict in three hours but seems like that will key evidence and i don't there's an explanation of the fact that he had four and a half one million dollars worth of drugs in his car and he doesn't know how it got there i mean just you know how else can you explain that other then he knew about it well let me take the at the relative like the deliberations versus it was basically like a one day trial i don't think the deliberations were unusually short in some of these other cases that we've cited i don't think there were lengthy deliberations that wasn't something that this court to say that the air was not harmless the four and a half one million dollars i mean any time somebody brings drugs to the border it's a law or it's a substantial amount of money i mean these are these as valuable cargo i mean the government says for half a one million dollars on a wholesale level it's not nearly as much money but whenever people come to the border these are large quantities of drugs that in all these cases that are brought to the border wasn't something that caused this court to say that well the are the evidence was just overwhelming and therefore the error was harmless i do think the four a four b evidence was very important and prejudicial not might have been something that really convinced the jurors to go with guilt in the sense that i mean jurors are going to hear well you know he was a he engaged in this large axis the transaction he's a drug dealer of course he did it he's guilty they were given no instruction as to how to evaluate the four for the evidence but the  object to the absence of that instruction once the final instructions were provided well the the government concedes that it's not playing their review as to this issue and what the judge said was over the defense's objection i'm going to allow the government to argue the forty four dollars be evidence and i'm going to pull the instruction was that it was not limited to the border crossing evidence though well the judge's comment was and he said is over defense objection i'm going to allow the argument i'm going to pull the instruction i think that brief are you saying they waive the argument regarding the crossings evidence i thought they seated the four of four be error regarding the goober in live driving history and the purchases but where in their brief did driving history and not the crossings that's correct it's ok but to me to me you're arguing now that the government has ceded the point on the crossings evidence my misunderstanding your argument my argument and i guess the government can correct me if i'm wrong but i don't think i'm wrong is that they've conceded an error that the judge should have given the limiting instruction and if conceded that that issue wasn't forfeited they've conceded given the limiting instruction as to what evidence as to the acts to see suppose it access the transaction and as to the evidence that he had crossed successfully before because he stopped working for me i may be wrong but i don't think the government cede at that point at least not in the brief that i didn't see that that's why i was asking you where in the brief you're relying upon to support that argument but we can hear from the government in their own rebuttal i believe that as far as the instructional error they broad no it's not that broad i agree with your honor i was trying to respond to just press this question that he was asking whether the whether the failure to give the instruction was not whether the defense objected to that  briefly if there were no other course well let me just say one other thing about the forty four b and that is that the issue of this access to transaction we've pointed out several things that indicate that the testimony from the government's expert was demon ly incorrect and the government's especially not responded to that in the in their briefs i mean the price that's in that message is three dollars that's there is no ecstasy pill that cost three dollars any government expert should have known that would have known that it was or it was her argument below that that got that this was improper inferences because it didn't it seem more that the defense actually was trying to take advantage of this in this piece of the trial and to make the point strategically that you know the government's coming forward with this alleged nexus the evidence it just shows they have a weak case and seem like the defense more trying to harness this as opposed to objecting to it coming in well  i agree that the defense vigorously attacked it and try to work with the fact that this that this expert testimony was flat out wrong but the government continued to press forward with the testimony after it became clear that it was just false it's just not true there is no spanish word or all this with two l's that's just false testimony the fact that this was not the place to make that point before the jury right and the government even though the evidence was false they continued to argue to the jury that this expert testimony they told the jury you have you have evidence that that the defendant sent a message you can you can attribute any conclusion you want to that evidence the got what the government should have done is they should have withdrawn the testimony once it became what the fence put on evidence that there's no spanish word for it isn't it it had to be false testimony that that was the time to do that before the jury to persuade the jury that this was false testimony i don't i'm not sure the government would agree with you that this is false testimony it's kind of a trying to interpret slang and so you know the interpretation is subject to challenge but it's before the jury that that has to be not for us to say that it was false well the issue the question is is if there is a suspicion of false testimony then the government has to investigate it and they  can't just stick their head in the sand say well i don't know maybe maybe it's false maybe it's not we're not going to inquire and further and when you have indication that ecstasy any expert knows does not cost three dollars you have a receipt that shows that he went to o'reilly's auto parts and o'reilly's means in the masses when there is no such word as zero rallies and anybody should know that the disc is just being made up to try to convict them on false evidence and at some point they have to when they get to the point and even now they should say inquired as to whether ecstasy can cost three dollars a pill does that make any sense how they inquired as to this word there is there any indication that that's true if it's not if that's false testimony the government has an obligation even at this point to say the evidence was false it's not true and they have to do an investigation they can't just come up and say well we don't know we're not going to look into it on the on the issue of the jerk just the but the bias you're real quick this juror in that she had a certain amount of passion about the the specific drug issue in this case and then when she was asked repeatedly she didn't give a unequivocal answer that she could be fair she said i possibly could  fair i think i could be fair she said i think a couple of times or this court case law on the jury should have been struck both for implied and actual bias plain or review does not apply to structural errors like this and even if it did the the jurors flat out admissions made this airplane and it's a structural order which would require reversal thank for the united states there was no reversible error in this trial i'll go right to the last topic of discussion about this suppose that false evidence if you look at the actual testimony as opposed to the characterization the actual testimony for example at one hundred and forty two dollars the agent said he agreed on cross examination that after consulting with his agent that this interpretation was quote a possibility he never testified that he knew for a fact what this message meant what he did say was the message his attention was drawn to the message because it was a message exchanged with the person who had called the defendant thirteen times the night before his arrest he didn't know what the message meant so he consulted a cold case the agent who speaks spanish who gave him possible interpretations and then he asked another agent who knows about drug jargon who confirmed that the word boat can mean one thousand pills of ecstasy so there was no false testimony he was honest with the jury about what he did and what his conclusion was that it was easy for the government aware of the receipts from the o'reilly's auto parts before that testimony was given no and in fact during the agent testimony the defense didn't even cross examine them and say if you knew that there was a place called o'reilly's auto parts that felt sold cans of car spray would that change your opinion he didn't ask them that and said he waited until the defendant testif sort of shock and awe the jury with this magic receipt and have that moment to discredit the government's case and i think that was the plan and that was sort of the strategic decision that the defense made to now say that we were required to strike testimony that they never moved to strike and that we barely argued to the jury we stipulated that boaties could mean boats or containers and then the prosecutor didn't argue to the jury we know what this means he's a drug trafficker what the what he said was the diff there is that you heard about a message the meaning is disputed conclude what you will from that and i would submit that's entirely proper when you have disputed testimony like this that the defense never even asked what's your response to opposing counsel's point that any experienced drug agent should know that three dollars per pill for x is just not within the framework of reality he cites a th circuit case from a few years ago drug prices vary dramatically over a cross the country this isn't in the record but i to satisfy my own curiosity i looked it up and  three dollars actually isn't out of the realm of possibility for a price in southern california and again as your honour's noted this is something that agent side could have been asked about he was the value expert he was there to testify about the value of fentanyl on cross examination defense could have asked what about the price of ecstasy is three dollars reasonable and egypt flood could have responded if he knew again because the defense decided to wait until the defense case to introduce this receipt for the st time the agents were never cross examined about it and because they never asked to strike the testimony i don't think that we can be held responsible for submit for introducing testimony about what our agents best guess was what the texts matter it was not false it was candid with the jury and it was a very minor part of the case could you respond to a polls in counsel's representation regarding the government's concession and to the fore for be have a yes and i apologize if this wasn't clear from the briefs the only objection that was made below was during the instruction conference which i forgot your three  and that's when the prosecutor asked to pull the four a four be limiting instruction the defense objected so to the extent any argument is about whether the district court erred in giving in not giving the limited instruction that is preserved it was only in reference to the crossing records however on the next page the prosecutor flagged for the court that he was going to argue the inference from the bring lift evidence and then the judge then sort of said over objection i will not give the limiting instruction so i think a fair reading of that is that the limit in any to the extent we're talking about whether to give a limiting instruction that issue is preserved however this idea that that objection was sufficient to cover any objection to the inferences argued in closing argument or to suppose that false testimony just takes that objection and read it that way too broadly even the case that the different fights for the was not raised either when the when the prosecutor flagged for the court i'm going to argue that inference or during closing argument when the prosecutor said i submit to the jury here is a reasonable inference there was no objection in that case law says that the question of whether evidence is for or for b is reviewed to know whether the court's decision whether to give a limiting instruction is reviewed for an abuse of discretion and i i take it you're not but you seem to be saying instruction should have been given at least as to most of the southern rock seven ensign so the real point is is harmlessness so maybe you can speak to that yes that is our view is that we should have just let the limiting as your honour's have noted this is an extraordinary dollar amount four and a half one million dollars of a highly toxic substance and it's not hidden deep in some compartment in the car it's in the spare tire well and the defendant testify that he opens his trunk and checks to see if a spare tire is there from time to time and the chemist testified that just getting fat now on one skin can be death deathly so a deadly toxic substance four and a half one million dollars sitting in the trunk of a car from the time that validate his car overnight in some street in tijuana until the morning is just not a plausible story and i would also point out that the cases that opposing counsel cites the border cases where he says this court found that the error was still harmful all of those cases are different types of error so there for example doyle error where the prosecutor comments on a defendant's silence that's subject to a more stringent harmless error standard whether it's harmless beyond a reasonable doubt and actually in two of those cases at least the court noted that the jury deliberated for a long time in florida gomez the jury deliberated for four days in jury deliberated for a day and a half so that is a relevant factor in the court's harmlessness and now can you address mr costas argument about your point about the judge's comments saying this was a close call on the should we should we give some deference to that especially here where unlike most criminal cases the defense actually did testify and the judge you know may have observed his demeanor is credibility so should we give at least some deference to the judge's comment and you know assuming harmless error applies in the assessing that problem the problem with giving deference to the court's comment is that that that was completely untethered to any individual piece of evidence the question before the court is whether giving a limiting instruction about these small any inference is argument closing argument was the thing that would have tipped the balance the court wasn't commenting on that the court's view of the strength of the evidence several months later at sentencing is not enough to say that the case was so close that any little teeny extra piece of evidence or or instruction would tip the balance it's certainly not enough to to satisfy the defendant's burden on the claims that are reviewed for plain error where  that claim as with many of the others again review for plain error and given the court case law which talks about jurors that are equivocal or whose statements are not entirely clear and  undecided about whether it's structural error however this court case has consistently applied at least the st two prongs of plain error and hasn't yet decided whether that's the rd and th progs should be still considered under the same standard so for example in yama shiro which is cited in our opening brief sorry it's cited in my answering brief page forty three dollars the court applied at least prongs one in two and then didn't decide whether it's structural error or not but even if this court didn't want to get to problem two prong one the the court didn't strike the juror for cause neither party sought to strike the juror cause neither party struck it is not supported at the record look sure take on whether or not the juror unequivocally stated that she could be objective she did it use language such as i feel i think but this court said in the end that jurors are human and they don't have to pledge with complete they don't have to pledge impartiality with complete certainty and so looking applying that standard to  the comments i think that she satisfied the court and the court has been instructed to defer to the district court who use the jurors demeanor she satisfied the court that she could be fair and i think she satisfied both attorneys because they didn't object and she also after the initial exchange when the court went back around and question every juror there's a questionnaire that the answer where they say their occupation and what they do and then they asked again each juror whether there's any reason they couldn't be fair and ethically or thirty seven dollars she said i don't believe there's any reason i couldn't be fair and impartial and this is after the whole exchange with the court several other jurors said government for the st time today the government says that they don't think it should be harmless beyond a reasonable doubt standard it should be the code to standard we think it should be harmless beyond a reasonable doubt but either way we think we can win and i just want to quote a couple things from the supreme court this is from kodiak is it is not  appellate court's function to determine guilt or innocence nor is it to speculate upon probable reconviction and decide according to how that speculation comes out and this is from bone block in view of the place of importance the trial by jury has in our bill of rights harmless error review is not intended to substitute the belief of appellate judges in the guilt of an accused however justifiably engendered by the dead record for ascertainment of guilt by a jury under appropriate judicial guidance however cumbersome that process may be but we do have to determine whether or not it's likely that the outcome would have been different right right and we have to judge you on the who saw the live record we have the district judge you saw the live record and said this case could have gone either way so that district judge who was witnessing firsthand a live record thinks that this case was close he got to see mr acosta testify and a lot of the cases that the government talks about the defendant didn't testify you thing in that we have no discretion in this we have to defer to what the district court judge set to that language so we don't get to make an independent determination of the likelihood that the outcome would have been different we're balland by what the district court observed no i don't think the court is bound but in the case where the defendant testifies and the judge goes out of his way to say i think this case could have gone either way that shows you for that's true for i've never had that happening that's why you have a jury because the case could go either way i never had a judge say that typically the judge says this case was overwhelming  think it's a close case sometimes they'll say it's close and now that i think mean that was harmful necessarily well i think it's a good indication that the case was closed that the defendant's testimony was persuasive in addition this was an important error put aside what let's assume that the testimony wasn't false ok but this was important they had a law enforcement expert give a specific testimony that mr costin was a drug dealer he had engaged in a six thousand pill ecstasy transaction the jurors in without a proper lineage struction are going to sit there and think this guy's a drug dealer he's a major drug dealer of course he's guilty i mean this was an important part of the kids they want to say it was important but then why did they call an expert to give this testimony if it was important they brought in a law enforcement expert which sure is going to defer to you because they needed something to push them over the top in this case it was a close case as a district judge said and the judge heard in failing to give the appropriate cautionary instruction and when you have a judge who actually witnessed the defense testimony and says this case could have gone either way that is precisely the type of case where the government has not met its burden it's burden to show  error and they haven't met this burden the supreme court has said if the court is unclear if it's a toss up the tie goes to the defendant the and the are as harmful to scream court as said that over and over again in cases like o'neil versus makan age in several cases if it's a