call in that call which was presented the day of trial the morning the trial began the district court took those calls under review and the district  said that this was a close call and that it gave cause for concern and that was correct but what was incorrect was the district court allowing that into evidence there were four clubs which said everything that the prosecution wanted to say which was uncontested which is that shots were fired in the porcupine community the th call i also contained statement but it was the same one who shot his gun here last month that is propensity evidence it is evidence that was attempted and did present a caricature of mr robertson as a violent eleven call that's correct your honor however the issue i really think where we split was whether it was a testimonial statement or a non testimonial statement i understand the government's position that there's exceptions the hearsay rule but if it's a testimonial statement which it is then that distinguishes the natural case but the district court cited the statement the same guy who shot his gun here last week as a testimonial statement it was not made to help law enforcement identify an individual there was zero foundation whatsoever in the record but that statement was used to identify a suspect in an issue that i might add your honour's was uncontested so that the fact that the district court allowed that in evidence and it was a testimonial statement we must look at the real prejudice here the real prejudice is that mr robertson was not allowed to cross examine that anonymous witness at all and that evidence was presented to the jury in a case a three day case that came down to his testimony and whether this was self defense or nah now when we combine that with the other two  being the introduction or i'm sorry rather the nd been introduction of the marijuana evidence again the date of the trial began the prosecution notified the court that it was going to introduce this evidence and the court let it  over the defense objection now what we have now was was the objection of a for a for b objection your honor for for being notice was not filed on this specific issue of introducing that also the defense counsel at trial said that if they would have known that evidence was coming in of course they would have identified it and dealt with it and ward r which they didn't have an opportunity to do because the prosecution said we're going to introduce  examination in a three day trial about other uncharged conduct that being a felon in possession of a firearm there was no floor for b notice that the government was going to do this and they did it they asked them about four prior felony convictions and cross examined him on uncharged criminal conduct and i might add that was the last thing the jury heard and when the defense asked for a curative instruction the district court denied it and when the defense asked the district court to simply repeat primary instruction number one the court refused these three errors when we put them together painted this caricature of mr robertson that didn't give them a fair shot at trial which came down to a three day trial and self defense now i understand the prosecution's position that this was harmless air but they get the analysis completely wrong it was not harmless error because many of the facts that the prosecution argues in its brief were uncontested it was uncontested that mr robson fired his gun it was uncontested but he was viciously beaten by a group of four or more individuals and these facts ran contested so for the prosecution to say well the evidence was overwhelming that the shots were fired of course they were what was not overwhelming was whether this was self defense or not so this wasn't a three week trial or a six week trial in which i think we could say no one's entitle to a perfect trial i understand that this fired that mr robertson drove his car to the area they also i will read this or are they also added some of them in which direction the shots were fired but again your honor that was uncontested it was uncontested by the defen the defense's contention of course was that this was self defense and so the eyewitness testimony that was presented by the government was largely uncontested what this case came down to essentially i would submit to the court was the testimony of your of a quicker senior and mr robertson himself ultimately that's what it came down to and so when you also think about the admission of the marijuana evidence it gave the jury reason to believe and i think this may be a reason for the split verdict that this was somehow a drug debt that was owed to a drug dealer with a history of violence with four felony convictions so it introduce that simply didn't exist and so the journey was encouraged to believe that we have an african american gentleman living in a predominantly native american community who deals drugs who was owed money by europe or equipped or senior for drugs and who has a history of violence and was committing other crimes that were not charge now the jury acquitted mr robertson of you have a quicker jr but they convicted on your quick and i think that could directly be related to the admission of this evidence because it in permissibly gave motive and i also understand the government argues that this was rest chest the evidence i get that but there was nothing make your honor may please the court my friend and colleague mr demick i'm kevin connor from the u s attorney's office in south dakota presenting on behalf of the government i want to start right into the question of whether this was testimonial information th minute trying to identify mr roberts and by the way none of the five calls none of the five callers knew his name so they're giving what they know in a room setting to a rope police dispatch i say that because they're trying to convey things that they by ambush the objections to these calls were raised by defense counsel the morning of trial in fact the district court brought out the fact you know why didn't you raise these a little earlier and why do i have to go back and listen to these calls now so an ambush anyway by the government these were produced in discovery and in fact the district court was displeased with the defense counsel for only bringing it up at the last minute what did the  it added as i guess a sense of the people in the community that were calling concerned at that time it was a cumulative in a sense probably yes but of course at this stage the extent to which is also the extent to which it probably didn't have any reasonable impact on the verdict and so you know did the government need to put in witnesses to talk about the eyewitness accounts of the shooting probably not in retrospect that the government need to put in all of the calls these nine hundred and eleven calls probably not in retrospect but of course the question now is whether the conviction you got right back at you were trying for two or three they're trying for a number of different conviction challenges is whether the challenge evidence had more than a slight effect on a verdict and when you have a case with this much evidence showing what happened that day it's hard to say that any of these challenge record is the government brings up its intention to raise this issue to clarify with the district court a prior motion in the ruling you know so and it's the government highlighting you know you're on our plan to get into this later today is that way if the jury wasn't informed at all about what these fights were about in the st place they would think that there's this you know this family group that just beats up indiscriminate strangers for no good reason at all he was picked at random that certainly wasn't true they would have otherwise without the senate's had a false sense of why the fight even started in the st place  issues were not preserved and why i say that that's important as the district court didn't have an opportunity to further explain on the record or didn't have really a reason to further explain on the record why these were imposed there was  discussion of the objections at sentencing in the district court even gave defense counsel an opportunity end over any other objections i've no objection there i say that because the evidence supporting this inspire that's that's true evidence extensive evidence of his past drug convictions for distribution and then there's these drug abuse convictions in his past and the defense the only alcohol mentioned is a new year's eve party three months before the ad and there's nothing else in the record after we look at it is that true i think that's accurate i think that is accurate but again what we don't have here is a is a district court being able to  case davis well actually quoting louis verse virginia and davis the caller were speaking about events as they were actually happening rather than quote describing past events the same one who shot his gun here last month as a past the bet this is testimonial so i disagree with the contention that davis has not testimonial nd of all ambush at trial just because it's produced in discovery doesn't mean it's coming into evidence so the government's argument that we produced it in discovery and therefore the defense was on notice doesn't make it right it still ambush when that day of trial after borders been concluded you say i'm going to introduce this i'm going to introduce these phone calls they  discovery it's still trial by ambush because you haven't given proper notice under four or four baby finally around us and response to justice grounders question about overwhelming evidence four of the witnesses objective eye witnesses these were the same people who beat him up it was not overwhelming evidence when it came to self defense thank you others thank you also