erroneous lead excluded co defendants wilson's statements providing appellant with an alibi to founds us specifically his statements that he did not see james from the time  hearsay that would be hearsay but our argument is that it was admissible under federal rule of evidence at all for subdivision deeper and three that it met the requirements of this statute because  saying but he didn't not see him until after the robbery on july third fall following his return to the apartment especially considering it with the rest of the statement of this proffer that he  july second two thousand and two show after the robbery occurred on july third two thousand and two i think from this statement the jury  statement could be could not be used in their case in chief our argument is that the statement there was no reason why the statement could not have been used in state court or a prosecution for just common law impeached with that his credibility would be undercut and teached with the introduction of the statement and then there's the issue of trustworthiness of the statements the statement was corroborated by the fact that there was no physical evidence found that linked james to the parking lot or to the even even without i don't know or without that item there is some corroboration because of the lack of physical evidence linking james to the parking lot or to the bank and i'm not talking about running burke's testimony or he hinders but the fact of physicalist evidence itself that was lacking it is the element of trustworthiness and particularly trustworthy well other than the fact that a reasonable person would would not admit to committing a federal bank robbery that that's one aspect which shows  that would corroborate trustworthiness but it's difficult on this record to go into wilson's character and say that there was a financial evidence that he was a credible person and the argument argument is based on the fact that there was corroboration because there was no physical evidence linking like i did it but my my kid wasn't with it but yes and i think it's similar to this is the same situation here wilson is unwilling to his participation in the they will be used given the plan of takeover which was operation well i think the government was required to put on some evidence that there was some conversation about the use of weapons or that weapons he was there when the weapons had been assigned to various persons or that  them carrying weapons out of the apartment or that morning there would need to be something more in this situation than just the fact that there were guns that had been used to know that it was reasonably foreseeable that he would know that guns would be used this seems to me that there's no real evidence here to upon which to establish foreseeability and upon which the jury could have found foreseeability and that's essentially our argument and then there's the argument about the restraint in which we've argued that there needs to be something do this do that walk over there don't leave that's not physical restraint not within the meaning of of and handsome and she was not tied the sentencing issues focusing actually on the latter of the two because the first of the two the restraint issue is within the law of the circuit that hasn't been overturned you're under strain to the discussion which occupied considerable portion of the earlier argument which is the issue of the unavailable witness mr wilson's statements and whether they were properly excluded the  versus what grand internationalizing the difference between the two wouldn't and why this one fell within the grand the government agrees with the implication of some of the questions asked by the by the court and with respect to peg i would say the if the court were to find that it was nonetheless not separable the question then becomes was was a trustworthy and in fact the the statement is is absolutely not trustworthy the end not clearly corroborate the codefendant statements because the circumstances indicate that a third person waited outside the bank while the mass robbers went in furthermore washington wilson are not clearly trustworthy since they know james and may have had reason to lie for him there's a citation a position influenced the charges against me so there was also in addition yes are these various things indicated if the statement with the court did point to the immunize nature of the of the statement and what was going on at that point as it emerged later at trial when the court actually had also have the opportunity to hear on the witnesses of the court heard mr sanders description of what actually happened there the robbery of the court scientific evidence doesn't corroborate mr wilson's statement the d n a expert indicated essentially that the the the lack of d n a on of mr wilt of mr of the defendant on either of the two robbers ma based on the foreseeability and the evidence that this follows your honor during the course of the trial the jury heard very hinders talk about mr james's involvement in the not only involvement but central role in planning this robbery in the course of that the jury heard mr specifically talk about the questions that james asked him to look out for in the bank the presence of security the presence or absence of the glass security wall for the tellers the number of tellers people in the bank and so forth hinders came back and spoke to him on those issues and among other things said to him that there may be security in the bank so in the on the issue of planning we have the tomorrow morning i want you to take me somewhere which he then did do that following morning in addition to the information related to the bank specifically and it was according to  james who told him where to go with the bank was already up it would appear to have been pre identified the then on the very day of the robbery when the three robbers go to the bank all three of them go obviously aware of that since he is one of the three the witness outside the banks you know the sort where he referred as a silk stocking mast on top of their heads he didn't see them pull down but he saw them on top of their heads the defender would have been aware of that and i see that i would been aware of them running into the bank in addition to that the defendant was aware of the fact that his own car not the car used to go to the bank but his own car gun from the presence of secured once while the the information that he had what hinders came back was that there might be security and there was no glass wall that is consistent with somebody the that would assist somebody in planning on this kind of robbery in determining whether i meaning a take over operate yes this takeover robbery it because it with would tell the listener of that there might be security there are a number of people in the bank so there generally about he's background information on takeover robberies and the way they work and the opined is an expert the guns are involved you'll find as an expert the guns are involved in the overwhelming number of cases because the nature of that type of property robbery would require the robbers just control everybody in the bank unlike a little note i have of you know i have a bomb in my face and my shoe appears you know give you money and no job would be i think the good i have a gun because she was uncomfortable about that later on when the after the robbery occurred she took the police officers and identified the james car and when they searched th car there was a fact a gun underneath the driver's seat of that car today from the other side you know the reply does not respond to that issue directly mr bronson you might you have a couple of minutes you might dress yourself are you asking for an animal on review or not need to review the sentencing transcript again and if there's an issue or you don't have any ground you want to go look for one yes your honor what was the reason we asked that  allow the jury to include beyond a reasonable doubt that is there any significance to the fact that he had a gun grabbers testimony to finding his car it's it's difficult to work backwards from   there would be some rational reason for believing that a person who was going to have a gun to use an escape might be willing to use the weapon  reasonable conclusion there are and why would somebody make a conscious decision planning a takeover robbery of a bank with possible security not to use a gun inside the bank but to use one once outside