cortez from mexico starting with the instructional issue over the past two decades there have been significant developments in the field of ai witness identification those developments were set forth exhaustive lee in judge me keys concurring opinion for the third circuit in the in bank decision of denis one of the things that judgment he noted was that in two thousand and twelve the supreme court in perry versus new hampshire emphasized the importance of eyewitness identification instructions in protecting the defendant's due process rights and the supreme court in fact specifically cited this court's model jury instruction as one of the types of instructions that help to ensure defend its due process rights what we are asking is for the court to hold that in a case like this where i witness identification was the crucial issue in the case and where the witnesses identifications were subject to many factors that demonstrated on reliability that a court upon request by the defendant is required to give an eyewitness identification instruction but have we were he said it's not not on the circumstances of this case and that's in our  reason not to give the instruction in this case and what it just let me ask you is once that testimony was in the experts opinions and you have the general credibility instruction where the first number is you know consider th not a specific and i think you know first of all the government tried to attack the credibility of the defense expert saying he was paid by the defense and he was a smooth talking professor but i think it would have been very very effective if the defense had four point one one the model instruction that he requested he could have ticked through each of those factors and if you go through each of those factors each when you apply them to the eyewitness identification structure in this case each one he would have had a strong argument you know the judges told you you should is and then they in the government's position will be that's a defense paid expert he they pay them a lot of money to come into court and say things that they wanted him to say and that it was their position there's the case is say that and this is boyd from the supreme court and we've cited for nard from this court defense counsel arguments are not a substitute for adjourn struction jury instructions have the imprimatur of law you know jurors are supposed to follow the instruction and in fact in and numerous cases this court says we assume juries follow the instructions and that's why there was no harm for something what did the fences entitle to particular when this is theory of the defense is an instruction that sets forth that theory and there's no reason not to give the instruction i suppose as is prior to dialogue indicated it would be hard for us to simply impose a blanket requirement to give the instruction whenever there's an eyewitness identification in light of our previous cases which bind us and you responded by saying well those don't apply to the circumstances of this case can you give us a rule of decision that would give us a line that we can explain why this case is over the line and should be distinguished from prior cases based on that distinction yes and what i would do is refer to the ten circuits decision and i'll get the name of the case jury in particular we will consider whether identification was a sole or primary issue in the case one of the evidence consisted mainly of eyewitness identification testimony and whether the testimony was uncertain qualified or suggested a serious question whether the witness had an adequate opportunity to observe and i would encourage the court to adopt that tenth circuit analysis and when you look at those factors was identification the sole primary issue in the case it was the sole issue in this case whether the evidence three material witnesses one didn't identify him and the other two initially didn't identify him and only did so later when the border patrol came to them and offer them the immigration benefits and the agent identified him using night vision goggles in very poor visibility conditions from a distance these factors i think are from the tenth circuit are good gun factors for this court to create a rule and i think under that rule the instruction was should have been given in this case fum if they're not if there are no other questions on that then well flip two is the expulsion of mr whence it cortez from mexico to the united states it's not there's really two related issues here the first is our position that was appropriate or other remedies were appropriate taking the evidentiary issue first what we have here in this case is that mr valencia who after the arrest we have the border patrol descending false information through press releases firstly falsely said that all the aliens on the night in question identified him as the guide that simply was not true the also said that he was working for somebody called l t gray who was a lieutenant in the sinhala cartel him through a threw something over his head beat him up and then brought him to the border and turned him over to u s border patrol the government has never submitted any type of sworn evidence any type of declaration refuting prosecution that is under united states versus that is that the prosecution effects the availability of him to prosecute but i don't understand how it affects the questions that are put to the jury well it affects their bias it affects their credibility the agents the agents who are the agents of presumably have that bias to begin with they're testifying on behalf of the prosecution they're really motivated they think this is the guy how does that change the evidence at trial because most durst think that well always conduct themselves honorably and honestly in there and they tend to believe agents but if if we have you know almost reminds me of an episode of the wire if the court is saying that if you've got agents who are engaging in underhand in a dishonest behavior because they think the ultimate means  correct that they think this is the guilty guy but they're going to do whatever it takes lie cheat not go through the proper procedures in order to prosecute this individual that shows that you've got dirty cops you've got you've got cops that are not believable and that's what suckers then i get the less likely that the perpetrator actually did ignore that this is the guy because we have a situation here where they are taking number one they're taking witness that the engage in this procedure where in contravention of the us mexico extradition treaty and required procedures they had mr valencia abducted illegally in mexico and brought to the united states i mean that's you know that's underhanded and i still don't understand how that makes it less likely he was guilty i mean why is it relevant to the issues posed to trial well if the jury thinks that the that the prosecution in the agent claims that he saw mr  a using night vision goggles from you know thirty feet away the rain and wind and everything else i mean they could doubt the credibility of the other explanation for the agent's motivation other than the agent is convinced that this is the guilty party i mean there's also he randomly start shooting in the air again in violation of border patrol protocol and he wants to he needs to find someone a guilty pleasure in the wire t v s constantly showing cops that really think they got the guy and will cross all the lines to get him and there are reasons we enforce the law and try to enforce those lines but i'm not sure the fact that the cop is really motivated is convinced that this is the guy helps to disprove this is the guy and that's that's the potential relevance here i'm having trouble at all janet i mean it's and again part of that comes down to one of the problems that i would use identification is that once a witness thinks they've identified the guy they just bury down no matter what and insist that that is the guy when oftentimes they are wrong but if this is in egypt and other agents who are willing to manipulate the evidence to falsely describe the evidence and effort to prosecute this one individual you would think that perhaps their testimony is not believable i mean that's what  i mean that's standard impeachment evidence of someone who's made false statements about a particular incident prior occasion you get to impeach the witness with those false allegations i mean the jury can credit you can look at that evidence look at that impeachment and decide do i believe this agent do i believe the government's case or do i not believe the government's case that standard impeachment that's what this court said in savior that's what the supreme court said in tiles which was cited say if you want to see sometimes yes the thank you me please the court nicole restocks united states i'll just pick up where where counsel just left off about the defense and the lady to impeach the witnesses about the press releases and and i think it got overlooked in the briefing but repeatedly oh didn't you only identify him because he were motivated to get this guy because you were targeting this guy volunteer himself testified they were out to get me through this biased defense was permitted but wasn't permitted was this extraneous evidence about what happened mexico and as your honour's have picked up on we don't think there was any relevance in the district court properly exercised its discretion excluding that happens well if in fact they could demonstrate or an offer of it in this suggests that a given agent is willing to cross the lines is willing to make false statements to accomplish his goal does not support an inference that this guy also you anything he is convinced this is defended so who will testify in whatever way he needs to to get the result so maybe i was a juror should discount his testimony absolutely that's classic impeachment evidence and that with the exact impeachment that was committed the problem lies is that neither agent had anything to do with these press releases neither agent agreed with the defense premise that they were willing to do anything so they were allowed to ask the questions or at least they said they had nothing to do with it but maybe that's a question the jurors are called upon to question too because who else in the office is motivated to to do the things that were done i mean it's easy to say why did nothing to do with it it must mean somebody else but nobody else is involved in the case so maybe he had something to do with it after all or at least well certainly your honor we have discovery obligations and if if we had any information to suggest that our testifying witnesses had knowledge about any of the actions that are in the discovery motions we would have turned that over was the question  responsible for issuing the incorrect or the the false press release your honor they were not false there is actually nothing fall from the press releases opposing counsel consistently says that the press re all of the witnesses identified that's not in the press release the press release says witnesses identified him and that's accurate so there's no false information to the ok great part of that caught my attention it sounded colorful i don't and even if that turned out to be an accurate number one that's not such outrageous misconduct so as to justify dismissing the indictment it that that one even when it was blatantly following the business side of it we do have rules to enforce the the issue i'm raising here is not something so drastic but why it is and we are again raising a question about the crime would be me the credibility of the testimony of the agents on the case the agents on the case if they had any involvement with linking the defendant to l t gray we would have had that information and we would have produced it and discovered the case agent  on behalf of the case agent that he knew nothing about coordination with mexico and the fence actually sought to introduce this press release about trial and the district court excluded on three grounds relevance for a three saying that it's actually prejudicial could be in fact prejudicial to the defendant telling the jury that border patrol thinks he's linked to the in a lower cartel and that it's cumulative because the only it's only point is to say for the patrol really wanted to get this guy they was a really bad guy they were willing to insinuate he was doing bad things in order to get him and that that the agents were cross examined they both said we wanted to find the whoever the alien smuggler was agent identified him i believe it was him agent matt said i i you know was was i briefed my guys about him because we were waiting for him he's somebody that we have a lot of experience with and so that any implication of bias aptly raised by the defense and to then get into this these side issues about whether he is or is not linked to the in the lower cartel was excluded properly under rule for a three at a minimum the district court didn't abuse its discretion having heard all of the pretrial motions having heard the defense theory having heard the cross examination of the witnesses and excluding enderle for just one more point the government his his testimony was corroborated by a number of things and as i think your honour's noted during the first part of the argument this expert came in gave more information than the model  this court that like other circuits leave the leave a determination to the district courts discretion and i think the district court was within its discretion in knowing the facts of the case knowing the evidence and knowing what the expert said what how the expert testimony came and came in you know over i think it's fifty pages of of transcript that came in quite strong and the government did not attempt to undermine the scientific basis and to say that the defense was entitled not only to that extent stanch expert testimony but to the court's additional of stamp of approval of the science behind it and it was within the court's discretion to say i think that the jury has been adequately informed or gave her explanation for not giving instructions she pointed to the model instruction commentary and she said the jury commish the jury committee discourages in fact and i thought that's going interesting because under i case law it's just seems to give discretion to the district judge basis for not she also exercising her favorable discretion yes your honor she also went on to say and by the way you're going to get to argue in closing all of the things that your expert said and i can find the page reference  noted earlier the court did instruct the jury about witness credibility and gave us the civic theory of defense instruction so there were instructions that defense counsel couldn't it point to and i would submit great minds could disagree as to what is stronger you have a jury instruction that is sort of neutral just given the science the fact that you have expert testimony which is substantially developed when she was in fact from oh oh and i i would just submit that the district court was within its disc to determine that a defendant in this case where there is corroborating evidence especially that the defendant's meath was was part of the group that i that the defendant was not entitled to both both the ice for a testimony and the and the judicial instruction and the committee seems to be saying well under the other but not both and i don't understand what's wrong with both i don't think that there would be anything wrong with both the fifth district court and its discretion thought i witness testimony was shaky enough or the expert testimony wasn't enough to alert a juror chauffeurs only thought it was shaky enough to justify allowing an expert which is in  experience which is limited and of that many of these cases that's more unusual and i've seen more cases with the instruction given that i've seen cases with the expert testify and so the district court thought there's not question here to allow an expert and i suspect judge office following the comment and saying but ok so i've a lot of the experts so we don't need to give the instruction and so i think she's probably driven by the comment i don't understand the comment if your honor was inclined to i guess overrule that prior case a lot of the comment is based on we still have a harmless error argument i think especially in light of the strength of the expert testimony  doing a harmless error analysis it talks in more sort of lesser probabilities could capable of and in a footnote in smith the court notes the instruction has been modified to address the error here and gives the model instruction that the court gave in this case which has the capable language so that's good that you know that it's sort of sending mixed messages as of what the proper standards are certainly smith is not enough to show plain error even if this court goes excuse me which is the brokers i think the court the courts case lies is unclear sorry i think this court case lies i'm clear i mean the statute so it's zero one thirteen and the other a federal salt statute  dangerous weapon element come in does it come in as part of the conviction or come in as part of sentencing part of the conviction an element of the offenses that the defendant used a deadly or dangerous weapon and the instruction goes on to define a deadly or dangerous weapon by saying that whatever the object is here it was a rock is a deadly or dangerous weapon if it is used in a way that is capable of causing death or serious bodily injury and in a case like this i don't think that the that the distinction between capable or likely is determinative because this this guy threw a softball shaped rock in the dead of night and it hit the agent in the face i think that's certainly capable of causing serious bodily injury and i think also likely to the fact that he aimed well enough to get him in the in the mouth in the dead of night definitely supports the jury's verdict but i think whether or not this court thinks that likely or capable is the correct standard smith and like in the case in the other cases just like to make a few points on the the likely vs capable since i didn't address it earlier and then just a couple quick points about identification instruction with respect to this court in smith this court is likely it has to be likelihood and that's consistent with fowler the supreme court case about a standard like just capable or possible is just wrong needs to be a likelihood standard and so it is plain error based on both smith and the supreme court's decision weapon wasn't used that whatever was gone was not likely to produce significant body and injury is at times the find on the i want to identify cation instruction the i think the government's essential position is that it's just totally up to the discretion of the dish record there are a few things number one the model instructions are obvious are not the law of the circuit nor are the commentary but the commentary has recently been amended to reflect that the third circuit has set up a task force which is based on judgment keys concurring opinion and dennis to take a closer look at this so obviously the jury instruction communities around the country third circuit ninth circuit are concerned that what's going on with identification instructions is a