Legal Case Summary

. There's no lineup or photospred or any kind of more reliable than in court identification, police arranged opportunity to make an identification. What is your best authority for applying the exception to 801 to this context? Your honor is absolutely correct, that the case is generally involved, recantation and therefore using the evidence. Our best authority is the rule itself. The rule is plain and explicit. I've just prayed you to the death. Well, I was told, well, you can say the rule is plain and explicit, but here's a challenge that I have for you. In every case that means we could have the following situation. Even where identification is not at issue, I mean here, Mercado's not saying I wasn't in the car. I get it in the case where that's at issue, the agent comes on, makes perfect sense. But in almost every case you can have the following situation. The agent gets on to lend his imprimatur to any point that may be at issue with regard to the cooperator. So the cooperator says, yeah, I was with the judge. Well, the agent says, well, you know, five minutes after I arrested, he said he was with the judge. So agent gets on, says he was with the judge. So the jury says, well, you know, the agent said he was with the judge. So I guess he was with the judge. And that's my concern. I'm in this situation. Your honor, the agent cannot cooperate the cooperator regarding anything, but can cooperate him regarding identification. And I will point out, and this is further answered to touch Rose. But he's not corroborating. He's merely repeating. Well, that's the problem. See, if the jury is serving as a human tapered partner. Yeah, if the jury had said, you know, I mean, in this situation, we know that they saw them when they arrested. They didn't see them on the earlier instances. Let's say the facts were different. And you had an agent who had seen Mr. Mercado on the earlier instances. Then I understand great

. He's adding something to it. But if all he's doing is saying, you know, well, as soon as I arrested him, this is what he said, that can't be compliant with. I understand, well, you know, the wording of the of the rule. But it says something to me that there are no cases that support this particular point. So it is fully compliant, Ron, and let me tell you why. Okay. And first of all, in terms of cases supporting it, this happens every day. And let me tell you the classic situation in which this happens. And that is when there's been a photo spread or lineup, as the judge mentioned. Whether or not there's recantation, it is common in criminal prosecutions for the government to put the agent on the stand and say, did you show them the photo spread 10 minutes later? Was there a lineup who did he identify? That is admitted. It is further admitted, consistent with this rule, that the witness then shows up in court doesn't have to be a cooperator. And can be asked the same thing as you sit here today. Do you see the person in court? Now why are both of these allowed? And they are always allowed. And what you're on or suggesting, I respectfully say, is a radical change in daily practice. The reason they're always allowed is what Judge Rendell explained in the Lopez case, which is the reason for this rule. The reason for this rule is allowing identification statements. Not as a hearsay exception, but not as hearsay at all, because it's in rule 8-01. It's because identification closer to the time of the event is seen as more reliable. What the rules makers decided was that when you have an identification that's made five minutes, ten minutes a day after the event, that is more reliable than somebody sitting in court one year or two years later. And that's why this distinction of recantation versus not recantation is not what any of this is about. What this is about is the rules makers deciding that identification testimony even made out of court is more reliable closer to the event. And that's why this happens on a daily basis. So that means that your position is despite all of the other testimony that the treaty offered, that's all fluff, because this is the only thing that matters. And in any case, this would have been invented. That's exactly right here on the earth. And it's fluff because it was undisputed. My friend, Mr. Feinberg, is not going to stand up today and tell you that Rodriguez didn't take the package out of the car and put it in his pocket and get arrested. Now, those are the additional facts. They came for an agent

. But no reasonable attorney, I would suggest, could think that you could make this objection if you boil it down to the identification. Who was sitting in the car when you're asked that five minutes later and think that would be excluded. And therefore, it's not constitutionally ineffective assistance. Why should that be our analysis when Judge the boy, yes, yes, when Judge the boys is looking at the entirety of Padrini's testimony and saying the effect of the entirety of this testimony on the jury had an effect that violated the circle. Well, because the only basis of his conclusion that there was an effective assistance and prejudice is that Padrini repeated the specific testimony about Mercado's repeated presence. And then he says that's the only fact that matters in this case. And therefore, it's an effect of I do want to, by the time I have to talk about the strategy. And he said that therefore, taking away the opportunity to cross examine Mercado Anunias as, you know, that he was just making this up. But wasn't the statement to Padrini, that could be argued was also fabrication. The both of them were after he had a motive to cooperate. So I guess, and I probably reserve that question for your opposing counsel, but seems to me, it doesn't necessarily mean that skill that didn't have the ability to do that. Now, skill that didn't, he adopted Mercado Anunias' statement and went a different way in terms of what his theory was. But it seems to me that, again, Judge Boyce premise that by allowing it, he took away the opportunity to later cross examine on a recent fabrication, he could have said, argue that both of them were recent fabrication. He absolutely could. And this, I think is a good place for me to segue into the second independent basis for this, which is strategy. And what is most striking about the district court's ruling in this case is that the district court is selecting one strategy that he prefers. As better than the strategy that defense counsel selected. And that, we think, is an error as a matter of law under Strickland and many, many decisions of this court. And your honor makes a really good point, if this is the point that if I understand correctly, which is that it's in what Judge Boyce is saying here, it's not enough just to keep up Padrini. You could object, and maybe the judge would keep up with Dredini's testimony. That gets you nowhere. Because Rodriguez Nunez is still going to get on the stand and say, he was there all day long. The other half, and the Judge mentions this, and you're on her alluded to it. The other half is, you need to go after Rodriguez. You need to go through all the normal impeachment, which the district court suggested. He's cooperating with us, he's got so much to gain. You need to go after him and say, you're making it up. The only time Ricardo was there was the last time, and you're making it up because you want to career it benefit. And this is where skill attestified. That wasn't my strategy

. And it doesn't work unless you pursue that strategy. He says, my strategy was, I liked what Rodriguez had to say. Whether it's admissible or inadmissible, of course, Defense Council can do that. He says, I like the fact that both Padrini and Rodriguez are saying at no time, from minute number one, to Rodriguez described any action to Mercado whatsoever. He sat there, even though Mercado was sitting in the passenger seat, and the drugs come out the passenger window. Rodriguez says, I don't know who handed me the drugs. And what skill says is, as the case developed, he called it Mana from Heaven at some point. This is what he wanted. He wanted to argue a mere presence. But on the matter from Heaven point, isn't the key that by Padrini lending his impromoto to Rodriguez Nunez, that enhances Rodriguez Nunez's credibility with the jury and that that's the issue so that I get your strategy point. But the point is, is that even accepting that strategy, not objecting to Padrini is inconsistent with the strategy. There's no strategy that was articulated that is consistent with letting the entirety of Padrini's testimony in because no strategy that allows that testimony in is helpful to Mercado because all of it now makes sense. So, it's a matter of Padrini and Ricardo. Rodriguez Nunez. And since it's not just Rodriguez Nunez, now that you are adding Padrini, that's the issue. Isn't that what the judges told us? Let me try to explain better if I may. Thank you, Your Honor. Yes, Padrini does bolster Rodriguez Nunez. And the reason it's strategic to do this is because the defense counsel accepts Rodriguez Nunez testimony. He wants to bolster Rodriguez Nunez testimony as it plays out. And he did not. And Mercado did nothing. Exactly. And when you read the closing, and I thought it was very helpful that the court last week asked us that we submitted the closing arguments, he explicitly says, I think it's page 37, I think of the supplemental appendix, he explicitly says to the jury, I accept Rodriguez Nunez testimony. Now what he did, what Skilda did throughout the trial was, he laid lots of foundations because as he said, as a defense lawyer, you never know what the testimony is going to be. So but once he saw it came in the best he did. Oh, for he got testimony from the agent and Rodriguez. Mercado did nothing. He sat there. He was a right to find evidence that he was merely present and clearly his evidence

. He was present, but you've got to find an act on the part of Mercado. Right. So he liked Padrini's testimony because it shows that from the not just that trial, but from the very first moment that Rodriguez is arrested when his motive to cooperate is at its height. Even then with Mercado sitting right there in the passenger seat, that even then Rodriguez says this man did nothing. He sat there. That's helpful. But can I have a question about that? He says at the cost of accepting that testimony and building on it is to accept with no ability to challenge as lacking in credibility, the testimony that Mr. Mercado was merely present on a repeated basis. Throughout what turned out to be a very busy day. That's right. And that your honor is what gets us to the heart of this appeal. Which is it's a strategic call. And the Constitution confers that call on defense counsel, not in hindsight on a court. On to the one that we're not supposed to second guess it. And but but my question is this. Was there any other testimony other than Mr. Rodriguez that put Mercado at the other occasions earlier in that day. No, there wasn't. But and so though he was clearly in the car on that one occasion. I'm a last occasion right. I was in the morning that would corroborate that these two men were associating with each other that day. So Rodriguez is not uncoroperated. What we see in the phone call evidence in the morning is that when Rodriguez gets calls the the by who he thinks the seller is the seller first calls Mercado twice before he calls back. Of course, if I can anticipate opposing counsel's response, it's going to be that there's some uncertainty about whether this was in fact Mr. Mercado's phone, whether it was taken from his person. Well, actually, that's a new issue that was raised in the letter. The government had to call an extra witness at the end of the trial to make it clear this phone was taken straight from Mercado. And then there was no real dispute about that in closing in front of the jury. But I want to get the strategic point is really what this is all about. As your honor says, which is that the defense counsel here has to make a call

. He could go after Rodriguez. He could say you're a cooperator and everything you just said about Mercado being there all day is false. But that puts him in a tough spot because he likes the other half of Rodriguez testimony, which is. Which is to be the more important. That's right, which is Mercado didn't do anything. So he could pick that strategy. Absolutely. And see what happens, but the risky runs does anybody say that Mercado did anything? No, no, the risky runs is that if he and I'll come back to that at the end. If he fails in that attack on Rodriguez, then he's lost the jury. If the jury says, look, we've seen the phone calls. We know he's sitting in the car when he's arrested. We know a second man is there when the drugs are delivered because an agent could see there was a second man just couldn't see who it was. We're just not buying this. He's lost the case. Is it in your view? This may be just a softball question. Is it permissible second guessing for us to say that it would. That choosing not to be somewhat inconsistent. That is telling the jury. I want you to believe this guy when he says Mr Mercado did nothing, but I don't want you to believe when he says Mr Mercado was my shadow all day. Is that crossed the line beyond what Strickland permits? Yes, it's it's impermissible. What the Supreme Court says in Strickland is that which council makes a strategic choice. It's hard. You don't always make the right choice. But where council makes a strategic choice, it is virtually unchallengedable. That's what Justice O'Connor said. Judge Rendell once wrote, I think in the Marshall case in 2005, essentially unchallengedable. So I prefer. Well, I mean, there are strategies that are just strategy not to do anything at the death penalty part of a death penalty case. Well, even that the Supreme Court has suggested may not even be ineffective. But this is a very high standard and the defendant has the burden to show not that he made the wrong call

. Not that one's call might have been better than the other, but that he was not acting at all as the attorney afforded by the sixth amendment. We would agree though with the proposition that if you made a if you engage in a strategy that was inconsistent with any conceivable theory, that clearly would be violated and stricled right? It could. Sure. Okay. So if a district judge engages in an analysis that leads a district judge to say, you know, I can't think of a plausible strategy which would allow this testimony. You'd agree at least theoretically that could be violated and stricled. Yes, sir. But here this court's review is plenary. No faction at this view here. The review regarding ineffective assistance is plenary and we are telling as did Mr. Skjola what the strategy was and what the what we have here is very purely a choice of two strategies. I know Mr. Feinberg might say that the district judge found there was no strategy. I don't think that supported by the record or by Mr. Steele's testimony. We have two strategies. We have the mayor presence defense. He wants to argue to the jury not believe half of Rodriguez and not the other half. He wants to be consistent. He wants to say the jury. I accept Rodriguez testimony. Mercado did nothing during the day. The that's one strategy. The other strategy is what I call the no presence defense. What judge Du Bois suggests take him on attack him say he wasn't there. This is why we have defense counsel. This is why people like Mr. Skjola have been practicing for 35 years. This is what they do. My question to you is isn't allowing all of Rodriguez testimony in despite how you may quantify it

. Isn't that inconsistent with both theories? No, I don't think so. Again, what it's saying is that the point of the strategy is why isn't it because if Padrini's testimony creates a greater likelihood or creates a better inference that Mercado did more than just sit there. Because Padrini's testimony is everything that Rodriguez told him earlier on about what happened during the day and so forth. Why isn't that inconsistent with all of it? It's allowing that testimony. Because accepting Rodriguez testimony in full means that Mercado was present all day long four times and didn't do anything. Padrini supports that. Says that from the moment Rodriguez could cooperate, he could have said at that moment, yeah, Mercado handed me the drugs and he didn't say it. That's consistent with what Skjola wants to argue, which is at no time ever. This is what he emphatically says to the jury. At no time ever has he said Mercado did anything. If I can make one last point, and this is just make it brief, please. I'll try though. Here's the point, which is we're looking at that is in hindsight, which is Supreme Court says he can't do. When he's and we're looking at it, when this was on direct appeal, it was a different standard of review and on Rule 29. The standard of review on Rule 29 as you're honest, well, no, actually I'll have the benefit of being here in a week for the end bank argument on this issue. I'm sorry we won't have Judge Rosalind with us, but the as we know the standard on Rule 29 is, are there, is there any reasonable inference that would support the verdict? Even if there's an equally good contrary inference that would support a finding of not guilty, but defense counsel trial is not looking at that. He's not saying to himself, oh, I'm really worried about what's going to happen on Rule 29. If I lose this case, if I let in this evidence about Mercado being present all day, the third circuit's going to say, this is a really close case, but that's a reasonable inference that repeated presence equals involvement. He's not thinking that I'm going to lose Rule 29. He's thinking, how do I win with this jury? And this jury isn't looking for reasonable inferences one way or the other. If it finds equally reasonable inferences, it may go with my inference. What I'm here for is to convince the jury of reasonable doubt, and I've got a shot. And my argument is Mercado sitting in the car, he's a friend, he's riding along, and this government has not proven that he did one single thing, that he even spoke once, did anything, handed anything. That's my shot, and he's decided to take that shot, and we have never seen a case in which an appellate court has held that to be constitutionally ineffective assistance to make a strategic call like that. And then of course, we have the prejudice argument, which is in a case this close, where the strategies are so close, how can one say there's a substantial probability that one strategy would work out better than the other? So you have all these multiple grants I appreciate all the time. We'll hear from you on Rebuttal. Thank you. Good morning. May it please the court, Jonathan Feinberg on behalf of the defendant, Appellate, Mingle Mercado. I'd like to start by addressing the point that the government makes that Judge Du Bois essentially was imposing his preferred strategy on defense counsel in this case

. Let's do that by addressing what was wrong with skill of strategy. In other words, what was wrong with arguing, mere presence is not what you need for aiding a betting, et cetera. Zero is zero, and Judge Du Bois is saying, well zero one time is zero, but four times zero adds up to something. What is wrong with that strategy that's a little adopted? There are two points. First, as a legal matter, as this court held on direct appeal, repeated presence is in and of itself enough to establish guilt. So it's an incredibly risky strategy under the law. Was that in the jury instructions? What was the question of presence in the jury instructions? The fact that repeated presence supports a fine and a bad thing. There's nothing that explicit. That comes from factual argument from the prosecution. But here, and I was very pleased that the court asked for a production of the full opening and closing statements because the very first words out of government counsel's mouth in the opening. I'm going to read, if I may, from the supplemental appendix of the government file, the page one. Ms. McCartney, the prosecutor, starts by stating on October 14th, 2008, this defendant, Domingo Mercado, was in a car while a conversation took place about delivering over 200 grams of heroin. Later that same day, this defendant was in a car. A short time after that, this defendant was in a car, a different car. I paraphrased a bit there. Nowhere does she say at any time in the opening that this defendant took any affirmative conduct or engaged in any affirmative conduct which would show some kind of participation in the drug transaction. It is abundantly clear from the very beginning of the case that the government's theory is presence and it's repeated presence. Well, she couldn't urge that he was present. I mean, that he did something when, for all she knew there wasn't going to be evidence of that. That would be a pretty weak way to open the case. Here's the thing. I think we have the testimony from trial counsel at the habeas portion of the case in which he acknowledges that of all the discovery information that was provided in this case, not a single piece of paper ever ascribed any affirmative conduct on the part of Mr. Mercado. That was essentially undisputed and really when it comes down to it, the only disputed fact in this case. The only disputed fact at all was whether Mr. Mercado was present on those prior occasions at the front and lip and cut. Well, what about the phone conversation or the phone calls, not the conversation. And calls. That's some evidence

. I mean, there may be some issue that later emerges. But when you say it's essentially undisputed that he was merely present, there's just no question about that. Where is the pattern of phone calls? That's absolutely correct. And your owner perhaps in your questioning, Mr. Osborne, foreshadowed my response, which is that the government had a real problem in how they were going to address these phone calls. And in fact, I noted in my response that the way agent pools, the case agent in this case, responded to questioning about where the phone was recovered. I think came as a significant surprise to the prosecutor in this case. No one could put it together where this phone came from. And I think that any skilled prosecutor upon hearing this factual presentation, there's no chance that a prosecutor is going to lead off in closing by saying this case is about the phone calls. Not at all. That's a serious problem. And you open yourself up to serious attack if you're counsel for the government. So in that case, your fallback position, not your fallback position, but your primary position, is that it's the evidence of repeated presence. It's not the phone calls at all. And I don't think that was ever interesting. Both in front of the jury. So let me throw what Mr. Osborne mentioned and that is, great. Padrini gets on and he essentially parrots what Rodriguez, Nunez, tells him, why isn't that so? So what? Well, in response to the question that Judge Rendell asked, I want to try and understand, is your honest suggesting that if he was lying, if he was lying to the jury, he was also lying to agent Padrini. Right. Why was that so damaging? It's damaging because of the repetition because, and it's also anticipatorially corroborating everything that Rodriguez and Nunez is going to test. But don't we have anticipatory, I've never used this phrase so I have to be slow anticipatorially corroborating. That's what you said. Yes. It happens every day. I'm no longer a district judge. Judge Rosenfall is. I used to hear that fun. She hears it now. I mean, you have that all the time. Yeah, and to follow up on the question, there in every case, the defense lawyer spends a great deal of time cross examining the corroborating defendant, co-dependent about the plea agreement, about the incentives to cooperation. And jury looks on with great patience. And at the end of the day finds everything that the corroborator says entirely believable. And every case starts, it starts or ends with the case agent, they either set it out or they put it together at the end. They have to show somehow that Ricardo Nunez testimony that there was going to be a way to find that he was not believable, that he was just a weak witness. And this really turned the tide because he really, because that's prejudice. But for this, they would have disbelieved that it was Mercado who was there all day. I mean, we got Mercado the phone calls in the morning and we got Mercado, I mean, I got Mercado on there picking up the money. And I got the Mercado in the car. We got Mercado at least in the car. And at the end, he has good, you know, is the jury, how, or can you can tell us the jury is going to disbelieve? Ricardo Nunez. Your answer question, I think, went into the prejudice prong. If I can bring it back to the reasonableness prong as to the strategy that's employed. And I'm happy to address prejudice as well. But with regard to the reasonableness, for counsel to have said, I'm going to accept what agent Petrini says, Rodriguez Nunez said, is simply not reasonable under these circumstances. Why, that's the question judge Greenaway. And that's because, first of all, it's not a missile. We can get into the identification testimony. I think the court has probably accepted to my position on that based on the question that was asked. If the evidence is not admissible, then why let him in? And if it's going to set up for the jury, everything they're going to hear from Rodriguez Nunez. And here's the point. I make the argument in the brief. Well, you're saying why not. What was wrong with it? Well, I'm, what's interesting about, look, there's some dispute in the brief about whether there was factually a strategy. I could tell from your honest response to Mr. Osmer's point addressing my factual argument that the judge, that Judge Du Bois, found that there was no strategy. I perhaps may not have the best reception on that point. I do think the opinion from Judge Du Bois can be fairly read to suggest that there really was no coherent strategy here. Because what we see are very stark inconsistencies in the way trial counsel handles things. Well, but I do think, and I've been a trial judge too

. Yeah, and to follow up on the question, there in every case, the defense lawyer spends a great deal of time cross examining the corroborating defendant, co-dependent about the plea agreement, about the incentives to cooperation. And jury looks on with great patience. And at the end of the day finds everything that the corroborator says entirely believable. And every case starts, it starts or ends with the case agent, they either set it out or they put it together at the end. They have to show somehow that Ricardo Nunez testimony that there was going to be a way to find that he was not believable, that he was just a weak witness. And this really turned the tide because he really, because that's prejudice. But for this, they would have disbelieved that it was Mercado who was there all day. I mean, we got Mercado the phone calls in the morning and we got Mercado, I mean, I got Mercado on there picking up the money. And I got the Mercado in the car. We got Mercado at least in the car. And at the end, he has good, you know, is the jury, how, or can you can tell us the jury is going to disbelieve? Ricardo Nunez. Your answer question, I think, went into the prejudice prong. If I can bring it back to the reasonableness prong as to the strategy that's employed. And I'm happy to address prejudice as well. But with regard to the reasonableness, for counsel to have said, I'm going to accept what agent Petrini says, Rodriguez Nunez said, is simply not reasonable under these circumstances. Why, that's the question judge Greenaway. And that's because, first of all, it's not a missile. We can get into the identification testimony. I think the court has probably accepted to my position on that based on the question that was asked. If the evidence is not admissible, then why let him in? And if it's going to set up for the jury, everything they're going to hear from Rodriguez Nunez. And here's the point. I make the argument in the brief. Well, you're saying why not. What was wrong with it? Well, I'm, what's interesting about, look, there's some dispute in the brief about whether there was factually a strategy. I could tell from your honest response to Mr. Osmer's point addressing my factual argument that the judge, that Judge Du Bois, found that there was no strategy. I perhaps may not have the best reception on that point. I do think the opinion from Judge Du Bois can be fairly read to suggest that there really was no coherent strategy here. Because what we see are very stark inconsistencies in the way trial counsel handles things. Well, but I do think, and I've been a trial judge too. Things can change. The defense counsel is not 100% sure which way this, this train is, is headed. And God has to preserve all options. And I, I just, and I think he testified credibly that he had a strategy. I don't know if that's a finding of fact or not, that the, that the judge Du Bois, you're saying Judge Du Bois disagree with that. And ultimately, we still come to the question of reasonable listen. I, I can frame my argument in that context. Well, I get to, get to the prejudice issue because I think that the, it's kind of, it morphs into the reasonableness issue morphs into prejudice. Yeah, understand that it's, that it's close. If it be, just to lay the groundwork for that, if I can point out the fact that trial counsel had set up in his opening, an attack on Rodriguez's new news is credibility, which was close to an objection of opening the way he made this argument, which suggests that this guy's got all the reasons, all the reasons in the world to lie. And then moments later, literally moments later, the first witness testifies that he hangs back and he claims that that was a strategic decision. Then shortly after that, he had jacks to the testimony of officer Ken Jonas, the Spanish English translator, which parroted exactly what we heard from Agent Padrini, concerning Rodriguez, new news statements. It's impossible to square those things. And I would suggest that when, trial counsel was objecting to Ken Jonas's testimony, he's in that right frame of mind, which Judge Du Bois found was the reasonable frame of mind that that testimony was not admissible. Put it even further, and this is, I don't know if this is not addressed at length in the brief, but I'd like to point the court to appendix page 180. That is where it's 180. Oh, trial counsel is questioning Agent Padrini on cross examination and narrows down with him at the only person who put Mr. Mercado at that location front lip and cut. Is Mr. Rodriguez, new news. And there's a great reason for doing that because it narrows down the evidentiary support for the conclusion that he was repeatedly present. Now, my rhetorical question is, why would you do that? If you aren't going to attack the evidence supporting repeated presence, there's no reason to engage in that framework of cross examination unless you're going to attack it. So when we see these completely inconsistent actions by counsel on the one hand opening an attacking credibility, consistent with that, narrowing down to Rodriguez news. Is inconsistent strategy a sufficient basis to find that the reason will this prong is violent? Oh, no, no, and that's not the point. The point is this trial counsel's explanation for why he decided not to object, whether you accept that as a factual finding or not. The trial counsel's explanation is not reasonable under the circumstance. Well, but I'm going to press on that a little bit. Again, going back to this theme of inconsistency. We're kind of picking among inconsistencies because if the if the approach had been to ask the jury to disbelieve Rodriguez news, he's also the one who is the best source, if you will. In his post arrest immediate statements of supporting the theory of presence, but mere presence that is I didn't do anything

. Things can change. The defense counsel is not 100% sure which way this, this train is, is headed. And God has to preserve all options. And I, I just, and I think he testified credibly that he had a strategy. I don't know if that's a finding of fact or not, that the, that the judge Du Bois, you're saying Judge Du Bois disagree with that. And ultimately, we still come to the question of reasonable listen. I, I can frame my argument in that context. Well, I get to, get to the prejudice issue because I think that the, it's kind of, it morphs into the reasonableness issue morphs into prejudice. Yeah, understand that it's, that it's close. If it be, just to lay the groundwork for that, if I can point out the fact that trial counsel had set up in his opening, an attack on Rodriguez's new news is credibility, which was close to an objection of opening the way he made this argument, which suggests that this guy's got all the reasons, all the reasons in the world to lie. And then moments later, literally moments later, the first witness testifies that he hangs back and he claims that that was a strategic decision. Then shortly after that, he had jacks to the testimony of officer Ken Jonas, the Spanish English translator, which parroted exactly what we heard from Agent Padrini, concerning Rodriguez, new news statements. It's impossible to square those things. And I would suggest that when, trial counsel was objecting to Ken Jonas's testimony, he's in that right frame of mind, which Judge Du Bois found was the reasonable frame of mind that that testimony was not admissible. Put it even further, and this is, I don't know if this is not addressed at length in the brief, but I'd like to point the court to appendix page 180. That is where it's 180. Oh, trial counsel is questioning Agent Padrini on cross examination and narrows down with him at the only person who put Mr. Mercado at that location front lip and cut. Is Mr. Rodriguez, new news. And there's a great reason for doing that because it narrows down the evidentiary support for the conclusion that he was repeatedly present. Now, my rhetorical question is, why would you do that? If you aren't going to attack the evidence supporting repeated presence, there's no reason to engage in that framework of cross examination unless you're going to attack it. So when we see these completely inconsistent actions by counsel on the one hand opening an attacking credibility, consistent with that, narrowing down to Rodriguez news. Is inconsistent strategy a sufficient basis to find that the reason will this prong is violent? Oh, no, no, and that's not the point. The point is this trial counsel's explanation for why he decided not to object, whether you accept that as a factual finding or not. The trial counsel's explanation is not reasonable under the circumstance. Well, but I'm going to press on that a little bit. Again, going back to this theme of inconsistency. We're kind of picking among inconsistencies because if the if the approach had been to ask the jury to disbelieve Rodriguez news, he's also the one who is the best source, if you will. In his post arrest immediate statements of supporting the theory of presence, but mere presence that is I didn't do anything. But no one was going to. But if you ask the jury to say, don't believe this witness when he says that this defendant did nothing, was present earlier, but believe this witness when he says that the defendant was there throughout the day, is that. In consistency in defense theory is potentially confusing to the jury and therefore one that a season defense lawyer as the evidence comes in and sees where he's got advantages should have the latitude of saying, I'm going to now go this direction and not muddy it up in the jury's eyes. I see the point I would not characterize that as inconsistent and the reason is that when you look at the entire factual record, no one anywhere was ever suggesting that Mr. Mercado engaged in any affirmative conduct related to the drug transaction. No agents testified to that Rodriguez, no, he certainly didn't testify to that and trial counsel knew he was not going to because he had the discovery which showed it and had he gone off script to use the word that trial counsel. Except for those phone records and that's something that I know that you think that there's some question about their reliability or their persuasiveness. Well, like those phone records are there. I understand your own point. However, I would suggest it's not just me making a factual jury type are given to this court. Judge DeBoys at Rule 29, this court affirming the conviction and sentence, the District Court on Havius, no one has ever suggested that the phone evidence leaked over the evidence of repeated presence. I'm not saying it's there. It's there. I mean, I'm not going to be expecting that. When you say that there was no other source of evidence of more than mere presence, I'm simply pointing to the fact that the phone pattern phone call pattern itself could be characterized as evidence of more than mere presence. If you tie them to Mercado and it there unquestionably is a circumstantial inference that can be drawn for the government. That's my only point. In the closeness of the case and I find that I'm getting to answer your question of prejudice. Yes, please. When we address a question of prejudice in a case like this where at every stage the District Court at trial, this court on direct appeal, the District Court in Havius has said, this is a close case. There's no question about it. Judge DeBoys has been on the bench for 25 plus years said, this is one of the closest cases I've seen in my entire career on the bench. When you have a close case like this, any conduct by council has to be looked at under the microscope more closely. Wait, the way the Striclin is not a microscope, is it? Well, and perhaps that's poor language choice on my part. But if it is, the District Court are really integral. I know a big time. Yeah, I don't intend to suggest that there's some type of enhanced review. But I do quibble with the government. And when the government says that the trial court imposed its own strategy on council, that's not a well-prepared case. You look carefully at Judge DeBoys' opinion

. But no one was going to. But if you ask the jury to say, don't believe this witness when he says that this defendant did nothing, was present earlier, but believe this witness when he says that the defendant was there throughout the day, is that. In consistency in defense theory is potentially confusing to the jury and therefore one that a season defense lawyer as the evidence comes in and sees where he's got advantages should have the latitude of saying, I'm going to now go this direction and not muddy it up in the jury's eyes. I see the point I would not characterize that as inconsistent and the reason is that when you look at the entire factual record, no one anywhere was ever suggesting that Mr. Mercado engaged in any affirmative conduct related to the drug transaction. No agents testified to that Rodriguez, no, he certainly didn't testify to that and trial counsel knew he was not going to because he had the discovery which showed it and had he gone off script to use the word that trial counsel. Except for those phone records and that's something that I know that you think that there's some question about their reliability or their persuasiveness. Well, like those phone records are there. I understand your own point. However, I would suggest it's not just me making a factual jury type are given to this court. Judge DeBoys at Rule 29, this court affirming the conviction and sentence, the District Court on Havius, no one has ever suggested that the phone evidence leaked over the evidence of repeated presence. I'm not saying it's there. It's there. I mean, I'm not going to be expecting that. When you say that there was no other source of evidence of more than mere presence, I'm simply pointing to the fact that the phone pattern phone call pattern itself could be characterized as evidence of more than mere presence. If you tie them to Mercado and it there unquestionably is a circumstantial inference that can be drawn for the government. That's my only point. In the closeness of the case and I find that I'm getting to answer your question of prejudice. Yes, please. When we address a question of prejudice in a case like this where at every stage the District Court at trial, this court on direct appeal, the District Court in Havius has said, this is a close case. There's no question about it. Judge DeBoys has been on the bench for 25 plus years said, this is one of the closest cases I've seen in my entire career on the bench. When you have a close case like this, any conduct by council has to be looked at under the microscope more closely. Wait, the way the Striclin is not a microscope, is it? Well, and perhaps that's poor language choice on my part. But if it is, the District Court are really integral. I know a big time. Yeah, I don't intend to suggest that there's some type of enhanced review. But I do quibble with the government. And when the government says that the trial court imposed its own strategy on council, that's not a well-prepared case. You look carefully at Judge DeBoys' opinion. What he was saying is, okay, here's the strategy that trial council was talking about. It's not reasonable under the circumstances of this case. And when you get to the prejudice question, when you look at the unreasonable conduct on the part of council. Well, let's see, if, if, Skiola had done what Judge DeBoys said, he should have done. IE, and assuming he could keep a Dreni's testimony out, argued that Ricardo Nunez had a motive to lie, do not believe him. Well, believe part of him, and don't believe the other part of him. How would it have, and there are these phone records, the blue is Mercado, the pink is, sodo is Marisette, and the green is, Nunez, Ricardo Nunez. How would it have turned out differently? I don't think that a skilled trial council, no question, Mr. Gil. We'd be here arguing that he should have allowed Padrini's testimony into bolster the fact of the mere question. Go ahead. How would it have turned out differently? I don't think that a skilled trial attorney would ever get up and say, believe this part, don't believe this part. I think that he would have, but the government would then clearly say, no, there he is. He's asking you. What a trial attorney he says would say that the jury is, no one is telling you that Mr. Mercado did anything affirmative during the course of this drug transaction. Well, that's right, but tell me how would it turn out differently? It was, Ricardo Nunez, a weak witness, was he a bad witness? Was his credibility such that really could be impugned such that he wouldn't have been believed with respect to the presence of Mercado? Aside from his interest, his bias and motives to fabricate his testimony, that's what you have. And, of course, looking at the record that we have. Every witness. But isn't the argument, there's a great argument that the prosecutor comes up with and would come up with, and he has enough from the bench in the Buddhist humiliation in that situation. They'd say, look, Rodriguez Nunez is credible because he would come up with a better lie. I mean, the better lie is actually pretty persuasive, which is, sure Mercado said something or he did something or he passed this or he knew what we were talking about or all of that. Instead, no, he doesn't say that. He says the guy said nothing. Right? But he was there four times and these phone calls, as soon as A calls B, D calls Mercado. Right? I mean, now we've all seen convictions on less evidence than that. So I'm wondering how we can come to the conclusion that you want us to come to, given that state of facts in the hypothetical we're trying to build. What a trial can. Can I ask a follow-up? I think that I want you to answer. Sure

. What he was saying is, okay, here's the strategy that trial council was talking about. It's not reasonable under the circumstances of this case. And when you get to the prejudice question, when you look at the unreasonable conduct on the part of council. Well, let's see, if, if, Skiola had done what Judge DeBoys said, he should have done. IE, and assuming he could keep a Dreni's testimony out, argued that Ricardo Nunez had a motive to lie, do not believe him. Well, believe part of him, and don't believe the other part of him. How would it have, and there are these phone records, the blue is Mercado, the pink is, sodo is Marisette, and the green is, Nunez, Ricardo Nunez. How would it have turned out differently? I don't think that a skilled trial council, no question, Mr. Gil. We'd be here arguing that he should have allowed Padrini's testimony into bolster the fact of the mere question. Go ahead. How would it have turned out differently? I don't think that a skilled trial attorney would ever get up and say, believe this part, don't believe this part. I think that he would have, but the government would then clearly say, no, there he is. He's asking you. What a trial attorney he says would say that the jury is, no one is telling you that Mr. Mercado did anything affirmative during the course of this drug transaction. Well, that's right, but tell me how would it turn out differently? It was, Ricardo Nunez, a weak witness, was he a bad witness? Was his credibility such that really could be impugned such that he wouldn't have been believed with respect to the presence of Mercado? Aside from his interest, his bias and motives to fabricate his testimony, that's what you have. And, of course, looking at the record that we have. Every witness. But isn't the argument, there's a great argument that the prosecutor comes up with and would come up with, and he has enough from the bench in the Buddhist humiliation in that situation. They'd say, look, Rodriguez Nunez is credible because he would come up with a better lie. I mean, the better lie is actually pretty persuasive, which is, sure Mercado said something or he did something or he passed this or he knew what we were talking about or all of that. Instead, no, he doesn't say that. He says the guy said nothing. Right? But he was there four times and these phone calls, as soon as A calls B, D calls Mercado. Right? I mean, now we've all seen convictions on less evidence than that. So I'm wondering how we can come to the conclusion that you want us to come to, given that state of facts in the hypothetical we're trying to build. What a trial can. Can I ask a follow-up? I think that I want you to answer. Sure. I hope I remember the question. But the follow-up is, no, it's the same question. Particularly keeping in mind the difference, if you will, between the ability of defense counsel to say, think about what you haven't heard. You haven't heard anybody say that he affirmative to do anything on the one hand and the ability of defense counsel to say, the guy with the biggest motive to pin it on Mr. Mercado when he had that chance affirmatively told you he was a lump on a log. Over and over and over again. There's a big difference in persuasiveness arguably. Why isn't that a strategic choice that plays right into what's a three-way? Well, I think first we're getting into a hypothetical strategic choice because that was not a strategic choice that was made. The strategy that was discussed by trial counsel was just to accept this testimony. And the district court's evaluation was whether that was reasonable. No, no, no. I was playing out with the district court's best scenario would be right. The district court says, if we get Padrino out, this is what we're left with. And my argument was the retort to that, which is not necessarily better because it would still be too convict. Oh, no, I understand that. I don't re-judge Du Bois to have said, this is what we're left with. I view him as having stated this strategy as it was explained to the extent that there was a strategy was not reasonable under the circumstances. That maybe splitting hairs, I acknowledge that. But ultimately, the point to argue to a jury in this case is, look, Rodriguez Nunez, he's got his interest. He's in deep trouble. He's got a motive to fabricate. And yes, he's not describing affirmative conduct to Mr. Mercado. So he's giving the government as a leader as he thinks he can to help make the case. That's what a trial attorney would say. And you can't believe that. You can't believe the little that he's given to the government because he's got these motives to lie. And I, you know, look, we can..

. I hope I remember the question. But the follow-up is, no, it's the same question. Particularly keeping in mind the difference, if you will, between the ability of defense counsel to say, think about what you haven't heard. You haven't heard anybody say that he affirmative to do anything on the one hand and the ability of defense counsel to say, the guy with the biggest motive to pin it on Mr. Mercado when he had that chance affirmatively told you he was a lump on a log. Over and over and over again. There's a big difference in persuasiveness arguably. Why isn't that a strategic choice that plays right into what's a three-way? Well, I think first we're getting into a hypothetical strategic choice because that was not a strategic choice that was made. The strategy that was discussed by trial counsel was just to accept this testimony. And the district court's evaluation was whether that was reasonable. No, no, no. I was playing out with the district court's best scenario would be right. The district court says, if we get Padrino out, this is what we're left with. And my argument was the retort to that, which is not necessarily better because it would still be too convict. Oh, no, I understand that. I don't re-judge Du Bois to have said, this is what we're left with. I view him as having stated this strategy as it was explained to the extent that there was a strategy was not reasonable under the circumstances. That maybe splitting hairs, I acknowledge that. But ultimately, the point to argue to a jury in this case is, look, Rodriguez Nunez, he's got his interest. He's in deep trouble. He's got a motive to fabricate. And yes, he's not describing affirmative conduct to Mr. Mercado. So he's giving the government as a leader as he thinks he can to help make the case. That's what a trial attorney would say. And you can't believe that. You can't believe the little that he's given to the government because he's got these motives to lie. And I, you know, look, we can... It's getting... You've got that argument whether... pardon me. You've got that argument whether a Padrini testifies or not because at the end of the day, your argument is, look, Padrini's not adding anything to it. Oh, no, no, no. It's a much more... The argument becomes in scale much more difficult to make. And I see I'm way over my time here. So we've got that time. Thank you. If they say not to, don't worry. And we've given Mr. Zalzmer. The argument becomes exceptionally difficult because the prosecutor was able to say in her closing argument, when you assess the credibility of Rodriguez Nunez, look at what he said to the agents. He said it before. In fact, we cite this in our brief to that portion of the... Where the prosecutor made that argument. He gave the prosecutor additional ammunition to amplify or to justify the credibility of Rodriguez Nunez because of this decision to allow this testimony in. And look, I can return... I haven't even addressed the question of identification testimony

. It's getting... You've got that argument whether... pardon me. You've got that argument whether a Padrini testifies or not because at the end of the day, your argument is, look, Padrini's not adding anything to it. Oh, no, no, no. It's a much more... The argument becomes in scale much more difficult to make. And I see I'm way over my time here. So we've got that time. Thank you. If they say not to, don't worry. And we've given Mr. Zalzmer. The argument becomes exceptionally difficult because the prosecutor was able to say in her closing argument, when you assess the credibility of Rodriguez Nunez, look at what he said to the agents. He said it before. In fact, we cite this in our brief to that portion of the... Where the prosecutor made that argument. He gave the prosecutor additional ammunition to amplify or to justify the credibility of Rodriguez Nunez because of this decision to allow this testimony in. And look, I can return... I haven't even addressed the question of identification testimony. I will defer to the court's questions on that issue. But assuming that the evidence was inadmissible, when you don't object and you allow that in, you're giving the prosecutor this extra weapon, which they shouldn't have in the first place to amplify the credibility, which you're going to attack in your closing, as you've told the jury you're going to, in your open. That doesn't make any sense. So the jury is left scratching his head saying, this lawyer told us this guy's got all these reasons to lie, and now he's kind of accepting it as true. That's not reasonable. I don't understand what he's saying. We may as well just find him guilty. In the closing were there reasons to lie? Was that argument raised? No, it was not, which was starkly inconsistent with what was said in opening, with what was evidence from the objection to Kenyounis' testimony, and with what was built in from the objection, pardon me, not the objection, from the cross examination of agent Padrini with regard to who had that narrow opportunity to have served Mr. Ricardo, Rodriguez Nunez being the only one, because no agency in New York was there. Let me ask a quick question of that identification. I'm just looking at 801D1C. Doesn't that, that assumes that it would be Ricardo Nunez that a Clarence testifies and is subject to cross examination. Does that presuppose that it would have been Ricardo Nunez, not Dreeni, who would have been on the stand? Is that your contention with respect to that? No, my contention is a little different. I have a separate contention in the reading of Lopez. I'm delighted to learn that you'd be on this panel judge so we could discuss. Me too. Actually, I think it is an important point to note that I read Lopez as not stating a broad level of invisibility as to 801D1C. Rather, a whole host of issues that are addressed in that case, Lopez is saying, look, this is a close call. It's not a abusive discretion. It's not prejudicial. It is harmless. It is harmless error. If there was error. What the government is saying, and Judge Greenaway pointed this out in his questioning, is that if you read Lopez the way they do, every case can start with a witness taking the stand for the government that says, so and so said this to me about the defendant being there and doing this. That's really, I think, the best way that I can explain their position. I don't view the rules as envisioning that at all. I certainly don't view Lopez as having authorized that type, the introduction of that type of evidence. And there's no other case out there. This truly will be treading new territory to hold this indistinguishable identification. Thank you

. I will defer to the court's questions on that issue. But assuming that the evidence was inadmissible, when you don't object and you allow that in, you're giving the prosecutor this extra weapon, which they shouldn't have in the first place to amplify the credibility, which you're going to attack in your closing, as you've told the jury you're going to, in your open. That doesn't make any sense. So the jury is left scratching his head saying, this lawyer told us this guy's got all these reasons to lie, and now he's kind of accepting it as true. That's not reasonable. I don't understand what he's saying. We may as well just find him guilty. In the closing were there reasons to lie? Was that argument raised? No, it was not, which was starkly inconsistent with what was said in opening, with what was evidence from the objection to Kenyounis' testimony, and with what was built in from the objection, pardon me, not the objection, from the cross examination of agent Padrini with regard to who had that narrow opportunity to have served Mr. Ricardo, Rodriguez Nunez being the only one, because no agency in New York was there. Let me ask a quick question of that identification. I'm just looking at 801D1C. Doesn't that, that assumes that it would be Ricardo Nunez that a Clarence testifies and is subject to cross examination. Does that presuppose that it would have been Ricardo Nunez, not Dreeni, who would have been on the stand? Is that your contention with respect to that? No, my contention is a little different. I have a separate contention in the reading of Lopez. I'm delighted to learn that you'd be on this panel judge so we could discuss. Me too. Actually, I think it is an important point to note that I read Lopez as not stating a broad level of invisibility as to 801D1C. Rather, a whole host of issues that are addressed in that case, Lopez is saying, look, this is a close call. It's not a abusive discretion. It's not prejudicial. It is harmless. It is harmless error. If there was error. What the government is saying, and Judge Greenaway pointed this out in his questioning, is that if you read Lopez the way they do, every case can start with a witness taking the stand for the government that says, so and so said this to me about the defendant being there and doing this. That's really, I think, the best way that I can explain their position. I don't view the rules as envisioning that at all. I certainly don't view Lopez as having authorized that type, the introduction of that type of evidence. And there's no other case out there. This truly will be treading new territory to hold this indistinguishable identification. Thank you. Thank you. I ask that you affirm the district court. Thank you, Mr. Zotin. Mr. Zotin, may you clear that up. I'm looking at D1C. Does it really apply to a Dredinese testimony? Yes, Your Honor. What A to 1 D1C says is the declarant, meaning the declarant is always the out of court, the declarant who made the statement. The declarant is available to testify, available for cross-examination. That's what we're doing here. About a prior statement. Correct. And then the prior statement is allowed. I thought only envision the situation where it is the declarant who is then testifying. No, it allows the prior statement to be brought in through any credible witness, just like any hearsay statement. So Rodriguez Nunez is the declarant. He is available and was cross-examined regarding the statement. That allows any witness, but Drini being the appropriate witness, to testify. So you have to stare at it for a minute. But it works like A to 3 does, but it's a little regret to hear say as well. Just a couple other quick points. What we saw at this contrast between the opening and the closing, there is a contrast. And what we saw is Skjola acting as an effective advocate. He lays the groundwork for an attack on Rodriguez Nunez if he has to do it. But then he himself testified as Pedrinis testifying he's realizing, I can get what I want out of this guy. He's an honest agent, he says. And it's interesting to look at the cross of Pedrinis. He's barely out of his chair. He says good morning, a page later

. Thank you. I ask that you affirm the district court. Thank you, Mr. Zotin. Mr. Zotin, may you clear that up. I'm looking at D1C. Does it really apply to a Dredinese testimony? Yes, Your Honor. What A to 1 D1C says is the declarant, meaning the declarant is always the out of court, the declarant who made the statement. The declarant is available to testify, available for cross-examination. That's what we're doing here. About a prior statement. Correct. And then the prior statement is allowed. I thought only envision the situation where it is the declarant who is then testifying. No, it allows the prior statement to be brought in through any credible witness, just like any hearsay statement. So Rodriguez Nunez is the declarant. He is available and was cross-examined regarding the statement. That allows any witness, but Drini being the appropriate witness, to testify. So you have to stare at it for a minute. But it works like A to 3 does, but it's a little regret to hear say as well. Just a couple other quick points. What we saw at this contrast between the opening and the closing, there is a contrast. And what we saw is Skjola acting as an effective advocate. He lays the groundwork for an attack on Rodriguez Nunez if he has to do it. But then he himself testified as Pedrinis testifying he's realizing, I can get what I want out of this guy. He's an honest agent, he says. And it's interesting to look at the cross of Pedrinis. He's barely out of his chair. He says good morning, a page later. He's barely out of his chair before he says to Pedrinis. He didn't tell you who he got the drugs from. That's what he wants. It bolsters his strategy of mere presence. But again, even at the moment he's arrested Rodriguez Nunez does not put any conduct on Mercado. This was a close case. And it was appropriate in a permissible strategy within this wide range of permissible advocacy for Skjola to try this mere presence defense. How about the point made about our on direct appeal that the mere presence is problematic when it's repeated? Well, as I said, that was the inference that allowed the court to support it. But counsel can think, I want the jury to go with my inference instead of the other inference. The fact that an inference will support the verdict on deferential review doesn't mean he's doing the wrong strategy by taking his best shot. And he thought his best shot was mere presence. And the point I want to make on that, the interesting thing no one's mentioned from the record, is that Judge Dubois, who we all respect tremendously, he says that the rule 29, if I were a juror, I would have acquitted. So what does that tell you? That tell you Skjola did a pretty good job. He had one juror with him, unfortunately, not a member of the jury. To then say that this was ineffective assistance of counsel. And the last thing on prejudice, the prejudice point, I want to refer to the Supreme Court's recent decision in Harrington versus Richter, which we cited in our brief page 38, where the Supreme Court said, the likelihood of a different result must be substantial, not just conceivable. And that's all we have here is a conceivable, different result. Had Skjola gone after Rodriguez Nunes and not allowed Padrini's testimony and attacked him, we can only guess. Would the jury have then said, oh, we don't believe the Mercado was there, or would they instead have said, no, this guy's a fine witness and we believe everything he just said. And we don't think very well of the defense for attacking him on only part of his testimony. This is a guess, and that's not sufficient under the prejudice point. Could you also submit the jury instructions? Yes, we will. Thank you very much. Thank you. In case as well, or again, we'll take another advice and I have the Court to recess.

Mr. Osmer? Thank you very much. Good morning, honours. Robert Osmer on behalf of the government. I mean, please, the court is the government's position that the district court aired and granting a new trial for Mr. Mercado and in finding ineffective assistance of council. There are three separate bases that we've put forward for that conclusion, any one of which must lead to reversal of the district court. Two relate to these all relate to the striclin standard, of course, of ineffective assistance. Two relate to the performance prong and then, of course, there's the prejudice prong. With regard to performance, it's our view that the judges' opinion cannot be sustained. Number one, because the conclusion that this evidence, this questioning of agent Padrini should have been excluded is wrong. The evidence was not hearsay based on a rule of evidence that we admittedly, belatedly presented to the district court, but the district court was good enough to consider. Is identification? That's identification. This is clearly a statement of identification based on your honours' decision in Lopez, authored by Judge Rendell. Not with standing Judge Rendell. How is this a statement of identification? Because what Lopez says is that a statement of identification is identifying a person at a time and place. The time and place obviously being the place of the commission of the crime. The statement here, what agent Padrini has asked is, what did Rodriguez-Nunia's tell you? And what Rodriguez said was, each time I met up with these people to discuss the transaction and then to receive the narcotics, each time there was a second man sitting there and that man was Marcado. That is a pure statement of identification. Or if the question probably should have been more pointed, did he identify to you who else was in the car at these junctures? Correct. That is the same question perhaps better phrase, but that is the question. Now Judge Dubois was concerned because when agent Padrini testified about what Rodriguez told him, he said Rodriguez gave the full account. The full account was, I went up to the car, I got the package of heroin, I put it in my back pocket, and then he's asked the question, as Judge Randall perhaps has better phrased it, who was the person who was sitting in the passenger seat? And Judge Dubois says correctly that the first part of that is not identification, the first part of that, taking the drugs, putting it in your pocket, are additional facts. But our point to that is, those facts were never in dispute. No one is disputing in this case because an agent testified that he saw- But isn't the error that the agent essentially lays upon the cooperator, his impromptuor, and that that presentation to the jury is where the error comes in, the counsel not having rejected to that? Well our point is, and there are two points, like I said we have separate arguments. Right, and part of it, that's a good strategy, and I'll get to that later, but just with regard to this, is he giving his impromptuor, is he adding to the evidence? Absolutely, this is admissible evidence, this is what the government does when it proves that- What all of it you did mid is not identification. That's true, but again, had this objection been raised by a competent counsel, had he chosen to follow the strategy that the judge thinks he should have followed? These questions could easily have been immediately parodailed to the only thing anybody cared about, which is the question phrased by Judge Rendell, who was the other person in the car? The government doesn't need to ask, did you get 230 grams of heroin and put in your pocket, and the agent saw that? They went up and grabbed Rodriguez at that moment, took the bag out of his back pocket, it had 230 grams of heroin. So, again, when we talk about what really matters here, what Judge DuPoi says the lawyer should have done if he was acting as a reasonable counsel, objective testimony, it's only about the identification. But even on that point, if I may, the cases that you cite, Lopez case among them, makes clear that the most frequent application of this provision of what is not hearsay, under the rules, is when a witness has identified the defendant in a lineup where he's been in the case of the defendant. There's no more photospred, but then forgets or later changes is testimony of trial. Here we have a very different context. There's no lineup or photospred or any kind of more reliable than in court identification, police arranged opportunity to make an identification. What is your best authority for applying the exception to 801 to this context? Your honor is absolutely correct, that the case is generally involved, recantation and therefore using the evidence. Our best authority is the rule itself. The rule is plain and explicit. I've just prayed you to the death. Well, I was told, well, you can say the rule is plain and explicit, but here's a challenge that I have for you. In every case that means we could have the following situation. Even where identification is not at issue, I mean here, Mercado's not saying I wasn't in the car. I get it in the case where that's at issue, the agent comes on, makes perfect sense. But in almost every case you can have the following situation. The agent gets on to lend his imprimatur to any point that may be at issue with regard to the cooperator. So the cooperator says, yeah, I was with the judge. Well, the agent says, well, you know, five minutes after I arrested, he said he was with the judge. So agent gets on, says he was with the judge. So the jury says, well, you know, the agent said he was with the judge. So I guess he was with the judge. And that's my concern. I'm in this situation. Your honor, the agent cannot cooperate the cooperator regarding anything, but can cooperate him regarding identification. And I will point out, and this is further answered to touch Rose. But he's not corroborating. He's merely repeating. Well, that's the problem. See, if the jury is serving as a human tapered partner. Yeah, if the jury had said, you know, I mean, in this situation, we know that they saw them when they arrested. They didn't see them on the earlier instances. Let's say the facts were different. And you had an agent who had seen Mr. Mercado on the earlier instances. Then I understand great. He's adding something to it. But if all he's doing is saying, you know, well, as soon as I arrested him, this is what he said, that can't be compliant with. I understand, well, you know, the wording of the of the rule. But it says something to me that there are no cases that support this particular point. So it is fully compliant, Ron, and let me tell you why. Okay. And first of all, in terms of cases supporting it, this happens every day. And let me tell you the classic situation in which this happens. And that is when there's been a photo spread or lineup, as the judge mentioned. Whether or not there's recantation, it is common in criminal prosecutions for the government to put the agent on the stand and say, did you show them the photo spread 10 minutes later? Was there a lineup who did he identify? That is admitted. It is further admitted, consistent with this rule, that the witness then shows up in court doesn't have to be a cooperator. And can be asked the same thing as you sit here today. Do you see the person in court? Now why are both of these allowed? And they are always allowed. And what you're on or suggesting, I respectfully say, is a radical change in daily practice. The reason they're always allowed is what Judge Rendell explained in the Lopez case, which is the reason for this rule. The reason for this rule is allowing identification statements. Not as a hearsay exception, but not as hearsay at all, because it's in rule 8-01. It's because identification closer to the time of the event is seen as more reliable. What the rules makers decided was that when you have an identification that's made five minutes, ten minutes a day after the event, that is more reliable than somebody sitting in court one year or two years later. And that's why this distinction of recantation versus not recantation is not what any of this is about. What this is about is the rules makers deciding that identification testimony even made out of court is more reliable closer to the event. And that's why this happens on a daily basis. So that means that your position is despite all of the other testimony that the treaty offered, that's all fluff, because this is the only thing that matters. And in any case, this would have been invented. That's exactly right here on the earth. And it's fluff because it was undisputed. My friend, Mr. Feinberg, is not going to stand up today and tell you that Rodriguez didn't take the package out of the car and put it in his pocket and get arrested. Now, those are the additional facts. They came for an agent. But no reasonable attorney, I would suggest, could think that you could make this objection if you boil it down to the identification. Who was sitting in the car when you're asked that five minutes later and think that would be excluded. And therefore, it's not constitutionally ineffective assistance. Why should that be our analysis when Judge the boy, yes, yes, when Judge the boys is looking at the entirety of Padrini's testimony and saying the effect of the entirety of this testimony on the jury had an effect that violated the circle. Well, because the only basis of his conclusion that there was an effective assistance and prejudice is that Padrini repeated the specific testimony about Mercado's repeated presence. And then he says that's the only fact that matters in this case. And therefore, it's an effect of I do want to, by the time I have to talk about the strategy. And he said that therefore, taking away the opportunity to cross examine Mercado Anunias as, you know, that he was just making this up. But wasn't the statement to Padrini, that could be argued was also fabrication. The both of them were after he had a motive to cooperate. So I guess, and I probably reserve that question for your opposing counsel, but seems to me, it doesn't necessarily mean that skill that didn't have the ability to do that. Now, skill that didn't, he adopted Mercado Anunias' statement and went a different way in terms of what his theory was. But it seems to me that, again, Judge Boyce premise that by allowing it, he took away the opportunity to later cross examine on a recent fabrication, he could have said, argue that both of them were recent fabrication. He absolutely could. And this, I think is a good place for me to segue into the second independent basis for this, which is strategy. And what is most striking about the district court's ruling in this case is that the district court is selecting one strategy that he prefers. As better than the strategy that defense counsel selected. And that, we think, is an error as a matter of law under Strickland and many, many decisions of this court. And your honor makes a really good point, if this is the point that if I understand correctly, which is that it's in what Judge Boyce is saying here, it's not enough just to keep up Padrini. You could object, and maybe the judge would keep up with Dredini's testimony. That gets you nowhere. Because Rodriguez Nunez is still going to get on the stand and say, he was there all day long. The other half, and the Judge mentions this, and you're on her alluded to it. The other half is, you need to go after Rodriguez. You need to go through all the normal impeachment, which the district court suggested. He's cooperating with us, he's got so much to gain. You need to go after him and say, you're making it up. The only time Ricardo was there was the last time, and you're making it up because you want to career it benefit. And this is where skill attestified. That wasn't my strategy. And it doesn't work unless you pursue that strategy. He says, my strategy was, I liked what Rodriguez had to say. Whether it's admissible or inadmissible, of course, Defense Council can do that. He says, I like the fact that both Padrini and Rodriguez are saying at no time, from minute number one, to Rodriguez described any action to Mercado whatsoever. He sat there, even though Mercado was sitting in the passenger seat, and the drugs come out the passenger window. Rodriguez says, I don't know who handed me the drugs. And what skill says is, as the case developed, he called it Mana from Heaven at some point. This is what he wanted. He wanted to argue a mere presence. But on the matter from Heaven point, isn't the key that by Padrini lending his impromoto to Rodriguez Nunez, that enhances Rodriguez Nunez's credibility with the jury and that that's the issue so that I get your strategy point. But the point is, is that even accepting that strategy, not objecting to Padrini is inconsistent with the strategy. There's no strategy that was articulated that is consistent with letting the entirety of Padrini's testimony in because no strategy that allows that testimony in is helpful to Mercado because all of it now makes sense. So, it's a matter of Padrini and Ricardo. Rodriguez Nunez. And since it's not just Rodriguez Nunez, now that you are adding Padrini, that's the issue. Isn't that what the judges told us? Let me try to explain better if I may. Thank you, Your Honor. Yes, Padrini does bolster Rodriguez Nunez. And the reason it's strategic to do this is because the defense counsel accepts Rodriguez Nunez testimony. He wants to bolster Rodriguez Nunez testimony as it plays out. And he did not. And Mercado did nothing. Exactly. And when you read the closing, and I thought it was very helpful that the court last week asked us that we submitted the closing arguments, he explicitly says, I think it's page 37, I think of the supplemental appendix, he explicitly says to the jury, I accept Rodriguez Nunez testimony. Now what he did, what Skilda did throughout the trial was, he laid lots of foundations because as he said, as a defense lawyer, you never know what the testimony is going to be. So but once he saw it came in the best he did. Oh, for he got testimony from the agent and Rodriguez. Mercado did nothing. He sat there. He was a right to find evidence that he was merely present and clearly his evidence. He was present, but you've got to find an act on the part of Mercado. Right. So he liked Padrini's testimony because it shows that from the not just that trial, but from the very first moment that Rodriguez is arrested when his motive to cooperate is at its height. Even then with Mercado sitting right there in the passenger seat, that even then Rodriguez says this man did nothing. He sat there. That's helpful. But can I have a question about that? He says at the cost of accepting that testimony and building on it is to accept with no ability to challenge as lacking in credibility, the testimony that Mr. Mercado was merely present on a repeated basis. Throughout what turned out to be a very busy day. That's right. And that your honor is what gets us to the heart of this appeal. Which is it's a strategic call. And the Constitution confers that call on defense counsel, not in hindsight on a court. On to the one that we're not supposed to second guess it. And but but my question is this. Was there any other testimony other than Mr. Rodriguez that put Mercado at the other occasions earlier in that day. No, there wasn't. But and so though he was clearly in the car on that one occasion. I'm a last occasion right. I was in the morning that would corroborate that these two men were associating with each other that day. So Rodriguez is not uncoroperated. What we see in the phone call evidence in the morning is that when Rodriguez gets calls the the by who he thinks the seller is the seller first calls Mercado twice before he calls back. Of course, if I can anticipate opposing counsel's response, it's going to be that there's some uncertainty about whether this was in fact Mr. Mercado's phone, whether it was taken from his person. Well, actually, that's a new issue that was raised in the letter. The government had to call an extra witness at the end of the trial to make it clear this phone was taken straight from Mercado. And then there was no real dispute about that in closing in front of the jury. But I want to get the strategic point is really what this is all about. As your honor says, which is that the defense counsel here has to make a call. He could go after Rodriguez. He could say you're a cooperator and everything you just said about Mercado being there all day is false. But that puts him in a tough spot because he likes the other half of Rodriguez testimony, which is. Which is to be the more important. That's right, which is Mercado didn't do anything. So he could pick that strategy. Absolutely. And see what happens, but the risky runs does anybody say that Mercado did anything? No, no, the risky runs is that if he and I'll come back to that at the end. If he fails in that attack on Rodriguez, then he's lost the jury. If the jury says, look, we've seen the phone calls. We know he's sitting in the car when he's arrested. We know a second man is there when the drugs are delivered because an agent could see there was a second man just couldn't see who it was. We're just not buying this. He's lost the case. Is it in your view? This may be just a softball question. Is it permissible second guessing for us to say that it would. That choosing not to be somewhat inconsistent. That is telling the jury. I want you to believe this guy when he says Mr Mercado did nothing, but I don't want you to believe when he says Mr Mercado was my shadow all day. Is that crossed the line beyond what Strickland permits? Yes, it's it's impermissible. What the Supreme Court says in Strickland is that which council makes a strategic choice. It's hard. You don't always make the right choice. But where council makes a strategic choice, it is virtually unchallengedable. That's what Justice O'Connor said. Judge Rendell once wrote, I think in the Marshall case in 2005, essentially unchallengedable. So I prefer. Well, I mean, there are strategies that are just strategy not to do anything at the death penalty part of a death penalty case. Well, even that the Supreme Court has suggested may not even be ineffective. But this is a very high standard and the defendant has the burden to show not that he made the wrong call. Not that one's call might have been better than the other, but that he was not acting at all as the attorney afforded by the sixth amendment. We would agree though with the proposition that if you made a if you engage in a strategy that was inconsistent with any conceivable theory, that clearly would be violated and stricled right? It could. Sure. Okay. So if a district judge engages in an analysis that leads a district judge to say, you know, I can't think of a plausible strategy which would allow this testimony. You'd agree at least theoretically that could be violated and stricled. Yes, sir. But here this court's review is plenary. No faction at this view here. The review regarding ineffective assistance is plenary and we are telling as did Mr. Skjola what the strategy was and what the what we have here is very purely a choice of two strategies. I know Mr. Feinberg might say that the district judge found there was no strategy. I don't think that supported by the record or by Mr. Steele's testimony. We have two strategies. We have the mayor presence defense. He wants to argue to the jury not believe half of Rodriguez and not the other half. He wants to be consistent. He wants to say the jury. I accept Rodriguez testimony. Mercado did nothing during the day. The that's one strategy. The other strategy is what I call the no presence defense. What judge Du Bois suggests take him on attack him say he wasn't there. This is why we have defense counsel. This is why people like Mr. Skjola have been practicing for 35 years. This is what they do. My question to you is isn't allowing all of Rodriguez testimony in despite how you may quantify it. Isn't that inconsistent with both theories? No, I don't think so. Again, what it's saying is that the point of the strategy is why isn't it because if Padrini's testimony creates a greater likelihood or creates a better inference that Mercado did more than just sit there. Because Padrini's testimony is everything that Rodriguez told him earlier on about what happened during the day and so forth. Why isn't that inconsistent with all of it? It's allowing that testimony. Because accepting Rodriguez testimony in full means that Mercado was present all day long four times and didn't do anything. Padrini supports that. Says that from the moment Rodriguez could cooperate, he could have said at that moment, yeah, Mercado handed me the drugs and he didn't say it. That's consistent with what Skjola wants to argue, which is at no time ever. This is what he emphatically says to the jury. At no time ever has he said Mercado did anything. If I can make one last point, and this is just make it brief, please. I'll try though. Here's the point, which is we're looking at that is in hindsight, which is Supreme Court says he can't do. When he's and we're looking at it, when this was on direct appeal, it was a different standard of review and on Rule 29. The standard of review on Rule 29 as you're honest, well, no, actually I'll have the benefit of being here in a week for the end bank argument on this issue. I'm sorry we won't have Judge Rosalind with us, but the as we know the standard on Rule 29 is, are there, is there any reasonable inference that would support the verdict? Even if there's an equally good contrary inference that would support a finding of not guilty, but defense counsel trial is not looking at that. He's not saying to himself, oh, I'm really worried about what's going to happen on Rule 29. If I lose this case, if I let in this evidence about Mercado being present all day, the third circuit's going to say, this is a really close case, but that's a reasonable inference that repeated presence equals involvement. He's not thinking that I'm going to lose Rule 29. He's thinking, how do I win with this jury? And this jury isn't looking for reasonable inferences one way or the other. If it finds equally reasonable inferences, it may go with my inference. What I'm here for is to convince the jury of reasonable doubt, and I've got a shot. And my argument is Mercado sitting in the car, he's a friend, he's riding along, and this government has not proven that he did one single thing, that he even spoke once, did anything, handed anything. That's my shot, and he's decided to take that shot, and we have never seen a case in which an appellate court has held that to be constitutionally ineffective assistance to make a strategic call like that. And then of course, we have the prejudice argument, which is in a case this close, where the strategies are so close, how can one say there's a substantial probability that one strategy would work out better than the other? So you have all these multiple grants I appreciate all the time. We'll hear from you on Rebuttal. Thank you. Good morning. May it please the court, Jonathan Feinberg on behalf of the defendant, Appellate, Mingle Mercado. I'd like to start by addressing the point that the government makes that Judge Du Bois essentially was imposing his preferred strategy on defense counsel in this case. Let's do that by addressing what was wrong with skill of strategy. In other words, what was wrong with arguing, mere presence is not what you need for aiding a betting, et cetera. Zero is zero, and Judge Du Bois is saying, well zero one time is zero, but four times zero adds up to something. What is wrong with that strategy that's a little adopted? There are two points. First, as a legal matter, as this court held on direct appeal, repeated presence is in and of itself enough to establish guilt. So it's an incredibly risky strategy under the law. Was that in the jury instructions? What was the question of presence in the jury instructions? The fact that repeated presence supports a fine and a bad thing. There's nothing that explicit. That comes from factual argument from the prosecution. But here, and I was very pleased that the court asked for a production of the full opening and closing statements because the very first words out of government counsel's mouth in the opening. I'm going to read, if I may, from the supplemental appendix of the government file, the page one. Ms. McCartney, the prosecutor, starts by stating on October 14th, 2008, this defendant, Domingo Mercado, was in a car while a conversation took place about delivering over 200 grams of heroin. Later that same day, this defendant was in a car. A short time after that, this defendant was in a car, a different car. I paraphrased a bit there. Nowhere does she say at any time in the opening that this defendant took any affirmative conduct or engaged in any affirmative conduct which would show some kind of participation in the drug transaction. It is abundantly clear from the very beginning of the case that the government's theory is presence and it's repeated presence. Well, she couldn't urge that he was present. I mean, that he did something when, for all she knew there wasn't going to be evidence of that. That would be a pretty weak way to open the case. Here's the thing. I think we have the testimony from trial counsel at the habeas portion of the case in which he acknowledges that of all the discovery information that was provided in this case, not a single piece of paper ever ascribed any affirmative conduct on the part of Mr. Mercado. That was essentially undisputed and really when it comes down to it, the only disputed fact in this case. The only disputed fact at all was whether Mr. Mercado was present on those prior occasions at the front and lip and cut. Well, what about the phone conversation or the phone calls, not the conversation. And calls. That's some evidence. I mean, there may be some issue that later emerges. But when you say it's essentially undisputed that he was merely present, there's just no question about that. Where is the pattern of phone calls? That's absolutely correct. And your owner perhaps in your questioning, Mr. Osborne, foreshadowed my response, which is that the government had a real problem in how they were going to address these phone calls. And in fact, I noted in my response that the way agent pools, the case agent in this case, responded to questioning about where the phone was recovered. I think came as a significant surprise to the prosecutor in this case. No one could put it together where this phone came from. And I think that any skilled prosecutor upon hearing this factual presentation, there's no chance that a prosecutor is going to lead off in closing by saying this case is about the phone calls. Not at all. That's a serious problem. And you open yourself up to serious attack if you're counsel for the government. So in that case, your fallback position, not your fallback position, but your primary position, is that it's the evidence of repeated presence. It's not the phone calls at all. And I don't think that was ever interesting. Both in front of the jury. So let me throw what Mr. Osborne mentioned and that is, great. Padrini gets on and he essentially parrots what Rodriguez, Nunez, tells him, why isn't that so? So what? Well, in response to the question that Judge Rendell asked, I want to try and understand, is your honest suggesting that if he was lying, if he was lying to the jury, he was also lying to agent Padrini. Right. Why was that so damaging? It's damaging because of the repetition because, and it's also anticipatorially corroborating everything that Rodriguez and Nunez is going to test. But don't we have anticipatory, I've never used this phrase so I have to be slow anticipatorially corroborating. That's what you said. Yes. It happens every day. I'm no longer a district judge. Judge Rosenfall is. I used to hear that fun. She hears it now. I mean, you have that all the time. Yeah, and to follow up on the question, there in every case, the defense lawyer spends a great deal of time cross examining the corroborating defendant, co-dependent about the plea agreement, about the incentives to cooperation. And jury looks on with great patience. And at the end of the day finds everything that the corroborator says entirely believable. And every case starts, it starts or ends with the case agent, they either set it out or they put it together at the end. They have to show somehow that Ricardo Nunez testimony that there was going to be a way to find that he was not believable, that he was just a weak witness. And this really turned the tide because he really, because that's prejudice. But for this, they would have disbelieved that it was Mercado who was there all day. I mean, we got Mercado the phone calls in the morning and we got Mercado, I mean, I got Mercado on there picking up the money. And I got the Mercado in the car. We got Mercado at least in the car. And at the end, he has good, you know, is the jury, how, or can you can tell us the jury is going to disbelieve? Ricardo Nunez. Your answer question, I think, went into the prejudice prong. If I can bring it back to the reasonableness prong as to the strategy that's employed. And I'm happy to address prejudice as well. But with regard to the reasonableness, for counsel to have said, I'm going to accept what agent Petrini says, Rodriguez Nunez said, is simply not reasonable under these circumstances. Why, that's the question judge Greenaway. And that's because, first of all, it's not a missile. We can get into the identification testimony. I think the court has probably accepted to my position on that based on the question that was asked. If the evidence is not admissible, then why let him in? And if it's going to set up for the jury, everything they're going to hear from Rodriguez Nunez. And here's the point. I make the argument in the brief. Well, you're saying why not. What was wrong with it? Well, I'm, what's interesting about, look, there's some dispute in the brief about whether there was factually a strategy. I could tell from your honest response to Mr. Osmer's point addressing my factual argument that the judge, that Judge Du Bois, found that there was no strategy. I perhaps may not have the best reception on that point. I do think the opinion from Judge Du Bois can be fairly read to suggest that there really was no coherent strategy here. Because what we see are very stark inconsistencies in the way trial counsel handles things. Well, but I do think, and I've been a trial judge too. Things can change. The defense counsel is not 100% sure which way this, this train is, is headed. And God has to preserve all options. And I, I just, and I think he testified credibly that he had a strategy. I don't know if that's a finding of fact or not, that the, that the judge Du Bois, you're saying Judge Du Bois disagree with that. And ultimately, we still come to the question of reasonable listen. I, I can frame my argument in that context. Well, I get to, get to the prejudice issue because I think that the, it's kind of, it morphs into the reasonableness issue morphs into prejudice. Yeah, understand that it's, that it's close. If it be, just to lay the groundwork for that, if I can point out the fact that trial counsel had set up in his opening, an attack on Rodriguez's new news is credibility, which was close to an objection of opening the way he made this argument, which suggests that this guy's got all the reasons, all the reasons in the world to lie. And then moments later, literally moments later, the first witness testifies that he hangs back and he claims that that was a strategic decision. Then shortly after that, he had jacks to the testimony of officer Ken Jonas, the Spanish English translator, which parroted exactly what we heard from Agent Padrini, concerning Rodriguez, new news statements. It's impossible to square those things. And I would suggest that when, trial counsel was objecting to Ken Jonas's testimony, he's in that right frame of mind, which Judge Du Bois found was the reasonable frame of mind that that testimony was not admissible. Put it even further, and this is, I don't know if this is not addressed at length in the brief, but I'd like to point the court to appendix page 180. That is where it's 180. Oh, trial counsel is questioning Agent Padrini on cross examination and narrows down with him at the only person who put Mr. Mercado at that location front lip and cut. Is Mr. Rodriguez, new news. And there's a great reason for doing that because it narrows down the evidentiary support for the conclusion that he was repeatedly present. Now, my rhetorical question is, why would you do that? If you aren't going to attack the evidence supporting repeated presence, there's no reason to engage in that framework of cross examination unless you're going to attack it. So when we see these completely inconsistent actions by counsel on the one hand opening an attacking credibility, consistent with that, narrowing down to Rodriguez news. Is inconsistent strategy a sufficient basis to find that the reason will this prong is violent? Oh, no, no, and that's not the point. The point is this trial counsel's explanation for why he decided not to object, whether you accept that as a factual finding or not. The trial counsel's explanation is not reasonable under the circumstance. Well, but I'm going to press on that a little bit. Again, going back to this theme of inconsistency. We're kind of picking among inconsistencies because if the if the approach had been to ask the jury to disbelieve Rodriguez news, he's also the one who is the best source, if you will. In his post arrest immediate statements of supporting the theory of presence, but mere presence that is I didn't do anything. But no one was going to. But if you ask the jury to say, don't believe this witness when he says that this defendant did nothing, was present earlier, but believe this witness when he says that the defendant was there throughout the day, is that. In consistency in defense theory is potentially confusing to the jury and therefore one that a season defense lawyer as the evidence comes in and sees where he's got advantages should have the latitude of saying, I'm going to now go this direction and not muddy it up in the jury's eyes. I see the point I would not characterize that as inconsistent and the reason is that when you look at the entire factual record, no one anywhere was ever suggesting that Mr. Mercado engaged in any affirmative conduct related to the drug transaction. No agents testified to that Rodriguez, no, he certainly didn't testify to that and trial counsel knew he was not going to because he had the discovery which showed it and had he gone off script to use the word that trial counsel. Except for those phone records and that's something that I know that you think that there's some question about their reliability or their persuasiveness. Well, like those phone records are there. I understand your own point. However, I would suggest it's not just me making a factual jury type are given to this court. Judge DeBoys at Rule 29, this court affirming the conviction and sentence, the District Court on Havius, no one has ever suggested that the phone evidence leaked over the evidence of repeated presence. I'm not saying it's there. It's there. I mean, I'm not going to be expecting that. When you say that there was no other source of evidence of more than mere presence, I'm simply pointing to the fact that the phone pattern phone call pattern itself could be characterized as evidence of more than mere presence. If you tie them to Mercado and it there unquestionably is a circumstantial inference that can be drawn for the government. That's my only point. In the closeness of the case and I find that I'm getting to answer your question of prejudice. Yes, please. When we address a question of prejudice in a case like this where at every stage the District Court at trial, this court on direct appeal, the District Court in Havius has said, this is a close case. There's no question about it. Judge DeBoys has been on the bench for 25 plus years said, this is one of the closest cases I've seen in my entire career on the bench. When you have a close case like this, any conduct by council has to be looked at under the microscope more closely. Wait, the way the Striclin is not a microscope, is it? Well, and perhaps that's poor language choice on my part. But if it is, the District Court are really integral. I know a big time. Yeah, I don't intend to suggest that there's some type of enhanced review. But I do quibble with the government. And when the government says that the trial court imposed its own strategy on council, that's not a well-prepared case. You look carefully at Judge DeBoys' opinion. What he was saying is, okay, here's the strategy that trial council was talking about. It's not reasonable under the circumstances of this case. And when you get to the prejudice question, when you look at the unreasonable conduct on the part of council. Well, let's see, if, if, Skiola had done what Judge DeBoys said, he should have done. IE, and assuming he could keep a Dreni's testimony out, argued that Ricardo Nunez had a motive to lie, do not believe him. Well, believe part of him, and don't believe the other part of him. How would it have, and there are these phone records, the blue is Mercado, the pink is, sodo is Marisette, and the green is, Nunez, Ricardo Nunez. How would it have turned out differently? I don't think that a skilled trial council, no question, Mr. Gil. We'd be here arguing that he should have allowed Padrini's testimony into bolster the fact of the mere question. Go ahead. How would it have turned out differently? I don't think that a skilled trial attorney would ever get up and say, believe this part, don't believe this part. I think that he would have, but the government would then clearly say, no, there he is. He's asking you. What a trial attorney he says would say that the jury is, no one is telling you that Mr. Mercado did anything affirmative during the course of this drug transaction. Well, that's right, but tell me how would it turn out differently? It was, Ricardo Nunez, a weak witness, was he a bad witness? Was his credibility such that really could be impugned such that he wouldn't have been believed with respect to the presence of Mercado? Aside from his interest, his bias and motives to fabricate his testimony, that's what you have. And, of course, looking at the record that we have. Every witness. But isn't the argument, there's a great argument that the prosecutor comes up with and would come up with, and he has enough from the bench in the Buddhist humiliation in that situation. They'd say, look, Rodriguez Nunez is credible because he would come up with a better lie. I mean, the better lie is actually pretty persuasive, which is, sure Mercado said something or he did something or he passed this or he knew what we were talking about or all of that. Instead, no, he doesn't say that. He says the guy said nothing. Right? But he was there four times and these phone calls, as soon as A calls B, D calls Mercado. Right? I mean, now we've all seen convictions on less evidence than that. So I'm wondering how we can come to the conclusion that you want us to come to, given that state of facts in the hypothetical we're trying to build. What a trial can. Can I ask a follow-up? I think that I want you to answer. Sure. I hope I remember the question. But the follow-up is, no, it's the same question. Particularly keeping in mind the difference, if you will, between the ability of defense counsel to say, think about what you haven't heard. You haven't heard anybody say that he affirmative to do anything on the one hand and the ability of defense counsel to say, the guy with the biggest motive to pin it on Mr. Mercado when he had that chance affirmatively told you he was a lump on a log. Over and over and over again. There's a big difference in persuasiveness arguably. Why isn't that a strategic choice that plays right into what's a three-way? Well, I think first we're getting into a hypothetical strategic choice because that was not a strategic choice that was made. The strategy that was discussed by trial counsel was just to accept this testimony. And the district court's evaluation was whether that was reasonable. No, no, no. I was playing out with the district court's best scenario would be right. The district court says, if we get Padrino out, this is what we're left with. And my argument was the retort to that, which is not necessarily better because it would still be too convict. Oh, no, I understand that. I don't re-judge Du Bois to have said, this is what we're left with. I view him as having stated this strategy as it was explained to the extent that there was a strategy was not reasonable under the circumstances. That maybe splitting hairs, I acknowledge that. But ultimately, the point to argue to a jury in this case is, look, Rodriguez Nunez, he's got his interest. He's in deep trouble. He's got a motive to fabricate. And yes, he's not describing affirmative conduct to Mr. Mercado. So he's giving the government as a leader as he thinks he can to help make the case. That's what a trial attorney would say. And you can't believe that. You can't believe the little that he's given to the government because he's got these motives to lie. And I, you know, look, we can... It's getting... You've got that argument whether... pardon me. You've got that argument whether a Padrini testifies or not because at the end of the day, your argument is, look, Padrini's not adding anything to it. Oh, no, no, no. It's a much more... The argument becomes in scale much more difficult to make. And I see I'm way over my time here. So we've got that time. Thank you. If they say not to, don't worry. And we've given Mr. Zalzmer. The argument becomes exceptionally difficult because the prosecutor was able to say in her closing argument, when you assess the credibility of Rodriguez Nunez, look at what he said to the agents. He said it before. In fact, we cite this in our brief to that portion of the... Where the prosecutor made that argument. He gave the prosecutor additional ammunition to amplify or to justify the credibility of Rodriguez Nunez because of this decision to allow this testimony in. And look, I can return... I haven't even addressed the question of identification testimony. I will defer to the court's questions on that issue. But assuming that the evidence was inadmissible, when you don't object and you allow that in, you're giving the prosecutor this extra weapon, which they shouldn't have in the first place to amplify the credibility, which you're going to attack in your closing, as you've told the jury you're going to, in your open. That doesn't make any sense. So the jury is left scratching his head saying, this lawyer told us this guy's got all these reasons to lie, and now he's kind of accepting it as true. That's not reasonable. I don't understand what he's saying. We may as well just find him guilty. In the closing were there reasons to lie? Was that argument raised? No, it was not, which was starkly inconsistent with what was said in opening, with what was evidence from the objection to Kenyounis' testimony, and with what was built in from the objection, pardon me, not the objection, from the cross examination of agent Padrini with regard to who had that narrow opportunity to have served Mr. Ricardo, Rodriguez Nunez being the only one, because no agency in New York was there. Let me ask a quick question of that identification. I'm just looking at 801D1C. Doesn't that, that assumes that it would be Ricardo Nunez that a Clarence testifies and is subject to cross examination. Does that presuppose that it would have been Ricardo Nunez, not Dreeni, who would have been on the stand? Is that your contention with respect to that? No, my contention is a little different. I have a separate contention in the reading of Lopez. I'm delighted to learn that you'd be on this panel judge so we could discuss. Me too. Actually, I think it is an important point to note that I read Lopez as not stating a broad level of invisibility as to 801D1C. Rather, a whole host of issues that are addressed in that case, Lopez is saying, look, this is a close call. It's not a abusive discretion. It's not prejudicial. It is harmless. It is harmless error. If there was error. What the government is saying, and Judge Greenaway pointed this out in his questioning, is that if you read Lopez the way they do, every case can start with a witness taking the stand for the government that says, so and so said this to me about the defendant being there and doing this. That's really, I think, the best way that I can explain their position. I don't view the rules as envisioning that at all. I certainly don't view Lopez as having authorized that type, the introduction of that type of evidence. And there's no other case out there. This truly will be treading new territory to hold this indistinguishable identification. Thank you. Thank you. I ask that you affirm the district court. Thank you, Mr. Zotin. Mr. Zotin, may you clear that up. I'm looking at D1C. Does it really apply to a Dredinese testimony? Yes, Your Honor. What A to 1 D1C says is the declarant, meaning the declarant is always the out of court, the declarant who made the statement. The declarant is available to testify, available for cross-examination. That's what we're doing here. About a prior statement. Correct. And then the prior statement is allowed. I thought only envision the situation where it is the declarant who is then testifying. No, it allows the prior statement to be brought in through any credible witness, just like any hearsay statement. So Rodriguez Nunez is the declarant. He is available and was cross-examined regarding the statement. That allows any witness, but Drini being the appropriate witness, to testify. So you have to stare at it for a minute. But it works like A to 3 does, but it's a little regret to hear say as well. Just a couple other quick points. What we saw at this contrast between the opening and the closing, there is a contrast. And what we saw is Skjola acting as an effective advocate. He lays the groundwork for an attack on Rodriguez Nunez if he has to do it. But then he himself testified as Pedrinis testifying he's realizing, I can get what I want out of this guy. He's an honest agent, he says. And it's interesting to look at the cross of Pedrinis. He's barely out of his chair. He says good morning, a page later. He's barely out of his chair before he says to Pedrinis. He didn't tell you who he got the drugs from. That's what he wants. It bolsters his strategy of mere presence. But again, even at the moment he's arrested Rodriguez Nunez does not put any conduct on Mercado. This was a close case. And it was appropriate in a permissible strategy within this wide range of permissible advocacy for Skjola to try this mere presence defense. How about the point made about our on direct appeal that the mere presence is problematic when it's repeated? Well, as I said, that was the inference that allowed the court to support it. But counsel can think, I want the jury to go with my inference instead of the other inference. The fact that an inference will support the verdict on deferential review doesn't mean he's doing the wrong strategy by taking his best shot. And he thought his best shot was mere presence. And the point I want to make on that, the interesting thing no one's mentioned from the record, is that Judge Dubois, who we all respect tremendously, he says that the rule 29, if I were a juror, I would have acquitted. So what does that tell you? That tell you Skjola did a pretty good job. He had one juror with him, unfortunately, not a member of the jury. To then say that this was ineffective assistance of counsel. And the last thing on prejudice, the prejudice point, I want to refer to the Supreme Court's recent decision in Harrington versus Richter, which we cited in our brief page 38, where the Supreme Court said, the likelihood of a different result must be substantial, not just conceivable. And that's all we have here is a conceivable, different result. Had Skjola gone after Rodriguez Nunes and not allowed Padrini's testimony and attacked him, we can only guess. Would the jury have then said, oh, we don't believe the Mercado was there, or would they instead have said, no, this guy's a fine witness and we believe everything he just said. And we don't think very well of the defense for attacking him on only part of his testimony. This is a guess, and that's not sufficient under the prejudice point. Could you also submit the jury instructions? Yes, we will. Thank you very much. Thank you. In case as well, or again, we'll take another advice and I have the Court to recess