well here the first case on trial in the united states versus delete derailed with unanticipated questions about a dismissed case that was sealed because there was a lack of evidence it twenty year old conviction his prior arrests and the facts of a petty larceny case that were presented in a way that made it seem that mr that was lying each of these types of evidence on their own was prejudicial and unduly so together they were devastated are you going to limit yourself to the ones that were objected to you know they were all objected to of all four of these types of evidence were objected to i think not an objection to asking the witness whether the police officers were like the agents were lying and i think i counted up a total of seven different people were lying even though there are two second circuit cases and cases in many other circuits saying that's improper but that was not objected to and has not been raised on  parkinson's disease was lying but the the the rest was not of that no the questions about is someone lying or objected to your honor if you see more errors that were an objected to by all means throw them on the pile as a reason to overturn th honour's questions indicate there were a wealth of questions to undermine mr cletus credibility and they weren't appropriate questions i think that the forgery questions were the most extreme they went on for about twenty separate questions and those allegations were it wasn't just allegations that were dismissed because the prosecutor didn't feel like continue with the case for some reason they were dismissed because the n y p d handwriting expert determined that they couldn't prove there was a forgery that there may not have been a forgery that no crime may have been committed i was somewhat confused about what was and was not before the district judge about that subject can you enlighten me well my understanding is that the district judge didn't understand that the reason the case had been dismissed was because of this handwriting expert at the n y p d determining the portree hadn't been created and that kind of explains one reason why this error happened when she said something like that at the in the post trial opinion that i wasn't clear about was we said well she didn't understand was that because she just didn't pick it up or was that because it wasn't disclosed your honor i'm not one hundred percent sure on that question what i do know is that this conversation about whether these this these allegation should be admitted happened in a very brushed manner the government didn't ask to bring it up in till after mr kelly says direct testimony and the court makes clear that it's very rushed because adjourn needs a break it's the end of the day and things do not happen they normally should and in federal court where it's all laid out for the for the court the government gets the date wrong about the conviction sure inadvertently and tells the judge assures the judge that it just falls under the decision she already made and none of that is true she had not ruled on this case which is different than the others and significantly different also because it was dismissed for lack of evidence even if these were errors though isn't the evidence of guilt s overwhelming here i mean there's evidence that he got on the plane that immigration witnessed his departure that he was received in the ukraine the flight manifest here's his name on it his credit card used in the u s and one day in the ukraine on the next  overwhelming evidence of guilt how can these errors have affected that at all because mr gleason's testimony was that the entire crux of the defense the government's case relied on paperwork and it relied on agents testifying about their his testimony was that over the many hours that they spent together between his two flights that the agents took him out for food that they went on some errands which the agents did testify that they do and that at the end they did not deport him that question of whether his testimony on the actual facts of what happened that day was the issue before the jury and the jury should have been able to make that credibility determination watching mr gill it's a test and i that's that's not the question that was asked the question is whether that matters when you got a documentation such as the use of his credit card in the united states one day and in ukraine the next and he says he was not deported and the credit card was used all over ukraine and then nicely comes back to the united states before he shows up again in the united states and one last thing and he says he mailed the credit card and yet it's one day in the united states the next day in the ukraine so it's awfully fast me here on ars i'm not saying that the government's case was weak but what i'm saying is that the only person who had any memory about what happened this day gurley you know if the agents had testified that out of all the people they put on planes since the date of this deportation they specifically remembered mr gleason and they specifically remembered putting him on the plane i would find that somewhat surprising and possibly even indicative of dishonesty you know you made the point they only testified to their normal practices but if they had made an exception to their normal practices i'm sure they would remember releasing somebody so you know the credibility of their denial that they ever did this is really what's at issue for the jury right i mean that this could not have been oh yeah we let this guy maybe let this guy go but who would remember that i don't remember doing anything like that they denied ever doing anything like that so there's really pretty straightforward testimony on the part of the agents that this didn't happen here the standard for the court on this kind of error to have to find that it was harmless is pretty high it must be highly probable that the error did not affect the judgment it actually of ukraine entry documents it's not only that he's on the passenger manifest from the airplane there's also an entry document showing his entry do you crane on the flight that he says he wasn't on yet i believe there are actually he wasn't they did not have the passenger manifest list because the airline did not have gone out of business since they had no passenger manifest list there what they did have the entry from the ukraine they did not have the return entry there were holes in the government's case which the defense should have been able to take a turn which would mean that they had no they had no documents showing his return to the united states you mean he if he left he had to have returned i mean he might have sneaked in well it's difficult that he can by airplane but indeed it happened m managed to do that a couple of times right and didn't he cross the border the southern border a couple of times before this had a couple illegal reentry cases before that and he doing illegal reentry it doesn't make sense to arrive at j f k airport  only your own name you know you earlier said that forgery had that there was testimony that forgery had not been committed my memory is that the expert was able to say whether it was a forgery or not just quite renovations unless he was stealing it i don't want the evidence shows that at all your honor if the government asserted that he charged too much money for home renovations which certainly doesn't seem fantastic to me in victims experience that was fair and right for asking about that i completely disagree your honor this court has explained in schwab that in the context of an acquittal after a charge to ask questions about the underlying sure but it's what i believe it's it's rare for the government to drop the case because they don't have the evidence it's at least as equal as an acquittal for the government to have dropped the case in terms of the potential probative value by asking  the jury actually acquitted him it would still only be the case that it was not proved beyond a reasonable doubt and we said in schwab that under those circumstances the probative value is much reduced not only much for d the point where the court's that would not be appropriate to introduce and your point is if the government acknowledges the prosecution acknowledges that they can't prove the case beyond a reasonable doubt your argument is that's tantamount to an acquittal correct and the fact jacobs points to about the person being vulnerable about how much money is stolen it's easy to steal from people it's easy to convict somebody if you think that they have also stolen twenty five thousand dollars from a vulnerable elderly sick man the prejudice from those questions which were numerous was exceedingly high here because of those facts you reserve some time for  may please the court my name is michael kraus i'm going to see united states attorney in the southern district of new york i represent the government on this appeal and i represent the government at trial you are the district court's district court did not air or does this discussion in the seven cherry in this case but let's start with the burglary conviction in one nine hundred ninety six the government's theory as to why that became admissible was that the defendant opened the door to it by saying that the first time he left the united states was in two thousand and four is that that's the theory right yes your honor that he left the country in two thousand and four and that he applied for a visa in two thousand and five and that visa let's let's assume it's quite reasonable i'm not sure but it certainly w courts discretion to say that the fact that he was deported correct misimpression that he just left under his own steam what is added to correct what misimpression but emphasizing that it was a conviction that led to his deportation what other than the prejudicial impact of identifying a nine hundred ninety six conviction that in itself the court had already ruled was not admissible on cross ye and the fact that the conviction was admitted but not the underlying what tell me what my question is what is what misimpression is corrected by adding to the fact that he did not leave voluntarily but he was deported by adding the fact that he was deported as a result of a criminal conviction that the government's argument was that because mr gillat said left the impression with the jury that he voluntarily left right and that's erected by saying you didn't leave honor at the at the time of the testimony it appeared that the circlets was minimizing the reasons for why he left the country but we didn't we by saying he was deported so that's that misimpression that i just happened to go home to the ukraine for a visit is corrected by saying no you didn't you were deported from the united states so what explain to me still what is added to correct what misimpression by alluding to a criminal conviction that is otherwise not admissible and is otherwise prejudicial your honor it would beg the question why he was deported so this is simply the government simply asked that that the government be able to or the defense in this case would be able to elicit that and once once that ruling was made the defense was allowed to reopen and itself correct the misimpression that shot and that was done yesterday and then still on cross examination there were five different questions admittedly  helped along by mr good's as quibbling a little bit each of which emphasized the word conviction and the whole thing was started up with weren't you arrested for effect for burglary not for when you were arrested was the introduction to that line  f questioning on cross some having a little trouble understanding why it is either appropriate for the government or a correct ruling by the district court to allow in the fact of conviction considered by the district judge as a separate aspect of this ruling i don't believe so your honor i believe that the mission was to correct the record to correct any misimpression that was left by the you forge checks of an able bodied youthful person is that more or less mendacious than forging checks of somebody who happens to be only or disabled yes yes you honor i believe so the fact that mr that the victim was an elderly man shows a targeting of a vulnerable individual and he's cruel it shows that he's a nasty fellow doesn't show anything more about dishonesty it could show more about dishonesty in that a dishonest person would dishonest person would be sorry a dishonest person might be dishonest that he would cheat an elderly person and that's more dishonest than somebody who cheats somebody else that he would target more vulnerable individual yes your honor and on that on that point those the government had a good faith basis to acquitted that conduct it was a dismissal by the manhattan d a s office based on proof issues based on what was so it was based it was more than proof issues right it was a fact of their handwriting experts said it's not a forgery the handwriting expert did not say it was not a forgery or honor the handwriting expert said he cannot conclusively determine that it was a forgery ok but he didn't he didn't go so far as to say this is not a forged ok it isn't isn't that i mean so therefore there is reasonable doubt therefore the guy would have gotten  prosecutor decides that there's not enough of a case to even go forward that's even stronger than having an acquittal isn't it no your honor acquittal is a determination that the government has not been able to prove the case beyond a reasonable doubt a dismissal is the government's determination that they possibly would not be able to prove it beyond a reasonable doubt but the other way to distinguish your honor is that they said the prosecution had no in the information in its possession to indicate that she was guilty of the offense there was no further inquiry done here the government did do further inquiry into the underlying conduct so the government reviewed the d a s file reviewed the bank records spoke to the victim the victim stated that he hired mr glitter to do fifteen thousand dollars worth of renovations to his home instead mr glitz cashed forty thousand dollars worth of checks the checks were cashed in non sequential order the victim stood by the fact that he only gave fifteen thousand dollars he was of able mind the fact that a forgery expert was not able to conclusively determine it was a forgery is explained by the fact that mr glitz was did have legitimate chats from the victim and had his legitimate signature and could therefore copy that signature on the checks that he stole so the government had more than a good faith basis to inquire into that conduct and the conduct clearly goes to the defendant's credibility once a defense films somewhat peculiar decision perhaps in my view but that was the ruling of this court if a conviction for shoplifting is not probative of mendacity why is the fact that someone shoplifted proof of  mendacity under rule six oh wait you don't know the issue as i understand that there's a different rule with different principles but the key to each of them in each case is that it's probative of dishonesty and if we say that shoplifting doesn't come in under six o nine because it's not about mendacity i'm not sure i understand why that does not control whether it is evidence of mendacity under six zero a year on or six o nine question the defendant denied it and the government had no problem with the defense's request for a a curative instruction that an arrest is not evidence and the instruction was given that the government questions are not evidence so six against richter in one nine hundred eighty seven and united states against truman in one nine hundred ninety five where we twice held that witnesses may not opine as to the credibility of the testimony of other witnesses at trial and therefore prosecutorial cross examination which c els a defendant to state that law enforcement officers lied in their testimony is improper is this the first time you're hearing that rule no your honor but i guess i was not aware that at the time and the government concedes that that was that was not objected to at all i understand that as well so there's one question here that goes to should this conviction be reversed but there's another question seems to me that goes to what training is given in the united states attorney's office with  i think that the unusual thing about this case is the number the volume of evidentiary errors here about mr testimony the government concede some of them the one that judge ledge just addressed the use of arrests repetitively through the testimony and then there are these two other really three other big ones one that we haven't touched on the use of the question about the petty larceny conviction as if it was a grand larceny the mistaken facts that the government asked mystically about that testimony that just larceny he was correct that it was one that he was accused of taking and changing the price on not the multiple items that the government said but the jury didn't know that the jury is just left with this overwhelming impression that nothing that mr saying can be believed which makes it impossible for them to believe what he is saying about the charges that he has actually facing and this trial should have been about those charges not about whether or not he committed a different crime that was very different in character and maybe exceedingly worse just your honour's reaction to stealing from in a vulnerable old man and this volume of money shows how prejudicial those questions were but with a mountain of evidence that was presented that he was deported to the ukraine if george washington testified that they let him go i just don't see how a jury could have could believe that even with all the years you're talking about i just don't see how it's not harmless with with this mountain of evidence especially the chronic or especially the cracker tell me why that credit card doesn't doesn't seal the deal you know to a degree that the evidence was strong in the government's case mr gleason had a response to the credit card but the government put on a mountain of evidence that had nothing to do with those facts when they were cross examining mr kelly that he didn't stand a chance and i think when the mountain of prejudicial evidence that shouldn't have been admitted is so great that this question find that that's not harmless in a case that really was about credibility thank you thank you both the reserve decision