including the government and the district court below mr stillwell is in the district court's words and in its decision situated differently that is to say crediting the arguments made  with regard to a motion to dismiss which in our presence in our position should have been granted at the close of the government's evidence the district court correctly noted the weaknesses that we point out in all of the evidence presented by the government and justified by the government in support of sustaining this jury's verdict the only argument on appeal is essentially one that boils down to the following if all of that evidence taken in isolation is weak just aggregating it together really doesn't change the bottom line which is that it was a weak case against mr stillwell and understand that the whole case depends on a single count and  single element meaning could the government sustain its burden of proof before a rational jury beyond a reasonable doubt that mr stillwell knew before he boarded that airplane bound for the philippines that the purpose of the conspiracy was to commit murder in a foreign country and that jurisdictional element again is one that ultimately in summation and argument the government seeks to justify and sustain based upon what mr stillwell must have known as the result of his relationship with a codefendant adam salmiya and they treat intent in effect as a contagious disease meaning that if there is proximity and a relationship just take a look the best evidence of what the government's argument was would be the summation in the district court and the summation was replete with instances during the course of  presentation following the trial to the effect that you know exercise your common sense ladies and gentlemen of the jury the relationship between these two leads to a conclusion that mr samuel must have shared the purpose of the conspiracy in the united states before the two of them left for the philippines we have to look at the record in the light most favorable to the jury's verdict absolutely and we have a very tough burden as jackson vs virginia makes clear so we're not arguing about that we understand the burden to the philippines is he kill someone the question is whether that murder plan arose only after he left the united states or whether it was his intent when he when he was still in this country right now there's any question that the evidence suggested that the plan arose the question is whether mr stillwell knew about it right before he left you know i mean let me suggest to you that the evidence you have to address for us is that he never traveled out of the country before and so his st trip is to the philippines where he commits a murder he does it in the company someone who knowledge is that that was his purpose in going and who is the individual who arranges for your client's passport and travel plans before leaving this country your client goes up on the computer and accesses websites that have to do with murder and he acquires various items including a shoulder holster for a gun that would be consistent with a murder plan which is stop there for the moment why would a jury not be able to infer from the totality of those circumstances that yes the man's in tampa when he left the united states was  totality maybe i can be helpful i think it's the difference between trying to understand this in the context of what would usually be the case on the sufficiency appeal involving conspiracy where you're dealing with general intent and to distinguish that the most important point i think in our brief between that case and this case which is that it ultimately boils down to a specific intent case all of those inferences that your honor talks about me well being the sort of thing in which a jury in every day in every courtroom in america can deal with ambiguous evidence and trying to understand and put it all together in order to infer whether or not the defendant is a law breaker or whether he crossed over the line that's an entirely different case though those generalized conspiracy principles don't really work  point we made from the outset of this case when you're dealing with having to prove the specific intent that the defendant knew that the purpose of the conspiracy was ticket mehmet commit murder in a foreign country i think it's really just a matter of when he joined the conspiracy there's no question that the temporal one but an important one because we offered a plausible alternative this is not a case where it's just one of those hypothetical possibilities and we understand the burden here that we're not it's not enough for us to just so that hypothetically there's an alternative hypothesis of innocence but this is a case where we actually have coconspirators who testified in the government's case as a result of cooperation agreements and one of them to move in vaucluse made quite clear that he was lured to the philippines thinking that it was security work and only found out what truly it was about once he got there so we're not talking about a hypothetical possibility that they might not have told him until he arrived in the philippines it actually happened in this case your client had other evidence i said and i know you have explanations for it but the jury could look at the website activity and purchase of some of the equipment as putting him in a different situation but as i mentioned your honor i see that my time is up and i could just respond to that you know with regard to it's not website activities actually what's on his hard drive on his laptop and but that's not materially important what is important is that the most that can be said of that evidence as to district court quite properly pointed out is that it's not clear how far you can take access it's not clear for example that access could be deemed the same thing as he opened the files and read them and given the fact that there were over sixteen thousand five hundred files on his computer in this interesting stuff folder i think the most that can be said for that evidence unless you combine it with other things is it just simply is not able to sustain the government's burden of proof to prove that the intent of this was to commit murder in a foreign country  d that's the st and with regard to the the shoulder holster of the hats and the the tactical gear remember your honor that this defendant was in the firearms business he made holsters for a living it's not inconceivable again an alternative hypothesis of  innocence but it's not you know in a vacuum this is actually the facts of this case it's not implausible to have concluded that equally one that a jury could infer that it was innocent and ultimately at the end of the day what does that add up to and add up it adds up to what most of the defendant a jury could probably find that he was probably guilty and that's not enough it's an element of the offense if they can't find that element of the offense beyond a reasonable totality and if you parse all of them together and say they're all weak but somehow or another magically even all of them weak adding up to something that the jury could find beyond a reasonable doubt we submit that that's contrary to law in other circuits and contrary to the kaplan case in this circuit that's the equivalent of saying again that the defendant must be guilty because he must have known as a result of information shared by mr some media and that's where it has to come from because he doesn't have any contact with anybody else in the conspiracy thank you every sort of the balance of my time may please the quite my hansford friend parent six witnesses saw the man who killed the victim in this case and they gave descriptions statements of identification and contributed to competent sketches that ruled out mr simeon as the killer everyone agrees those witnesses were sincere but the jury never got to hear or way and he of this evidence now this body of evidence consistent statements from six separate people two of whom correctly identified mr stillwell as the killer was critical to mr simeon's claim of innocence i admission was required both under related seven and in light of mr simmias constitutional right to present a defense now reversal is separately warranted because mr stillwell's deeply unreliable out of court case the standard is not sufficiency which is what you're hearing where hearing about for the st ten minutes the quality of the evidence matters and the fact that the critical evidence for the government came from  testifying pursuant to cooperation agreements is very significant so turning to sealed their identities some way why don't we have a reasonable conclusion by a district judge here absolutely your honor in this case the district court made a legal air in requiring a standard of trustworthiness much higher than what is required in this case and i want to address the specific concerns you race like the masquerading but the legal standard under the scores sharing court decision is the reducing risk as to any of any two of the four categories of hearsay risk is enough the benchmark is whether this evidence is equivalent in trustworthiness to avon's and met it under other hearsay exceptions that is not a high standard a statement  george clooney that evidence would be admitted even if that person only had a few moments to glimpse the evidence and i want to talk about the evidence in this case because it was extremely powerful evidence there was no possibility that th masquerading themselves there was not a shred of evidence for that proposition in fact two of the witnesses correctly identified mr stillwell's photo in a photo array disproving that theory to others identified someone who looked very similar here was concerned about the opportunity of the witnesses to view and thought that that there needed to be the opportunity for cross examination on this she was concerned about the fact that a fair amount of time had passed since the identifications and again she thought that there was a reliability issue without the opportunity for your honor the standard is not completely different and i would again point to the sharing court  the concern is not evident sighted utterance concern is assuaged by the fact that someone speaking in a moment of excitement is unlikely to fabricate fabrication notes as well as decisions from this court and the supreme court make that clear and that is the advisory as i said that's what fabrication is concerned with that's not a concern with the witnesses you're dealing with submit that the fact that there is no risk of fabrication in this case is itself a reason that this evidence had to be admitted and i would point to the advisory committee notes for that excited utterance exception that explain that although the risk of perception misperception is actually higher because of the excitement an excited utterance that is evidence is still in minute because the risk of insincerity is reduced the risk of insincerity is the most important factor this course  and bryce makes that clear the th circuit explained that and draggy and the sharing court decision makes clear that risk need not to be reduced to every category including perception but i would like to address your concern about memory and you're concerned about their liability of perception i would submit that the sincerity and lack of risk in narration itself are enough for me but if you disagree with me on that i'd like to address why this was extremely reliable evidence as to perception and memory so on perception these witnesses interacted with the killers for an extended period they met in one location traveled in separate cars to another walked up the hill viewed a property were introduced directly spoke directly to these people this is a far more extensive interaction than is required for testimony for hearsay and other testimony and the what misess a few full view of the faces of the killers they were able to contribute competent sketch with a full view of the face they were able to give specific detail description three years after the crime and five years after the crime never consistent between the witnesses as well as within the witness and he critically there are six separate people if this were just one statement that would be also admissible but here there are six people who consistently not a single person was able to identify mr semi in the lineup two of them did identify stillwell and in fact tony the nd killer the government alleged was mr simeon the witnesses got an even better view of that person because st he did not wear sunglasses but critically he tripped and lost his hat revealing his curly hair which mr samia does not have and his appearance to george clooney which also does not resemble mr simeon so this was an extremely detailed view this these people would have been the star witnesses at trial and the defense was desperate to get their testimony live but because it couldn't hearsay was a nd best option now in memory in judge adji st i would like to break out the sketches for this point because the sketches were prepared two days after the killing there was no risk of faulty memory if you agree with me just on the sketches that is a not forever so the defense was desperate to get that evidence and it would have made a huge difference in this case there's no risk of memory no risk of  witnesses gave descriptions the artist converted them into a sketch and the separate witnesses then adopted that sketch as accurately representing mr simeon and the consistency that a sketch that multiple witnesses agreed on and is not astronomical it's just threshold reliability such that it would be useful for the jury to have an opportunity to consider this evidence to hear this evidence and to weigh it against paul or is a certain that mr s and yes you're right there was a key to a van but not necessarily the van in which the victim was murdered in miami explained that the van was found years into the investigation under mysterious circumstances by poller who and the she turned up on one of his properties and the van resembled a van in which the victim could have been killed because the back taken out but for mysterious the philippine authorities would not allow the u s authorities to test the van to see if there was blood or d n a and to verify that in fact the murder occurred there now mr simeon a child conceded that he worked for this organization he explained that she was conducting what he believed was legitimate security work and he ran errands and she used their cars and so he didn't have a cheeto van that started but it was not clear that the van was the one where the murder occurred and just the this is the kind of fact that the jury could have found incriminating but it is so much more attenuated than the evidence that was excluded that evidence was excluded was i would miss testimony from people who saw the killers on the day who were neutral in fact who were friends with the victim who wanted to find the true killer who had no reason to lie these were the best witnesses in this case and they were excluded every single one of just a vehicle for admitting to huge quantities of hearsay at trials that is otherwise admissible in the rules the courts president is clear that rule later seven is a narrow exception and that i agree with that they weren't since it was the sincerity if she'd be arguing that we would judge and i think that it's a fair starting point and it was a fair starting point for judge abrams analysis but she did not her discretion when she concluded that based on all the considerations at play here that sincerity alone wasn't enough and i would like to talk a little bit about what these witnesses said and what was in the record there were some questions earlier about clusters of witnesses so i don't think it's accurate to say that there are six independent witnesses who provided this information and i'm going to use their initials if i could based on that the court sealing rulings so there's six witnesses there's n a and his two sons who have do one interview and then there's that the two real estate brokers and him and j m as well as the real estate seller a s so d n a makes clear in two thousand and fifteen tony stayed with kathie lee the victim well bill maxwell walked around the property right at that point this was something that judge abrams had to consider when making this evaluation she has reason judge abrams to question the type of look that da and his sons and got at tony because the witness when st question about this says this wasn't actually an ex than an interaction i brought my sons and kathy leader a starbucks these two other men were there we rode with the two men to the property i wasn't in the car when we get to look at the property tony who's we submit adam salmiya stays back with the victim and it was  around so the record is that what the d a said in two thousand and fifteen was that this wasn't an extended interaction and as to his two sons there is no evidence about the extent of the opportunity they had to view tony or bill maxwell part of the record and again this is a joint interview with these three people they say all three maxwell antonio are pulling their hats down tony i mean this is a quote from the notes mostly avoided talking with anyone tony did not speak and evading contact so the judge abrams was certainly entitled to consider those things when thinking about other markers of the reliability of this evidence in the conclude that they weighed pretty heavily again admissibility here and twenty seven and i think for me that one of the key facts is jim start to point out that this was the nd showing of the day it was getting dark that's in the interview notes and that's another thing that in addition to the caps that judge abrams could consider as a marker of reliability and i think we're talking about the st element of rule eight thousand eight hundred and seven equivalent circumstantial guarantees of trustworthiness and riley liability so i agree sincerity is conceded but i just spent a lot of time talking about the things in the record that could quite reasonably and in fact did cause judging and roams to doubt the person the opportunity of the to clarence to perceive tony that call into question the reliability of their identification statements in these descriptions the memory question i think is serious and straightforward they were not interviewed until two thousand and fifteen regarding a two thousand twelve murder there were some things sentence about these sketches there was nothing put in front of judge abrams about the provenance of these sketches and sam hughes reply brief i think he basically says well the government produced them so it was on them to to provide this information that's not right in the context and in miss ability to terminations the proponent the burden is on the proponent of the evidence to demonstrate that it's reliable and admissible and in this case sammy i had an opportunity to do that and j counsel went to philippines and had contact with the philippines a law enforcement agency responsible for the investigation the murder it would have been straightforward to ask questions about who is the sketch artist how are these prepared so the questions about the reliability and the authenticity of those sketches are abundant and it wasn't an abuse of discretion to exclude those i think today this analysis requires sort of an analogy to find some other hearsay exception that is that is similar that would bear on these questions in a similar way and the one that was relied on today was the excited utterance exception so i agree with the st point that sincerity i think is basically in question with respect to that so that exception but there's a nd component of the excited on utterance exception and it relates to memory because the person is talking about something that is happening at that time and so that is what sets apart the excited utterance exception and makes it an applicable and opposite when we're talking about witnesses being asked by law enforcement three years after a murder five years after murder about a day in two thousand and twelve and i think importantly a day when they had no particular reason to be focused on this any more than they would about for example what one had for breakfast five years ago this was a normal typical real estate transaction until after the fact and under these circumstances with the questions regarding perception and memory and narration and when we refer to questions about narration we're talking about is these notes are sparse the record before judge abrams about what these witnesses would have said if called was limited and so that also i think was a reasonable thing for her to question and to consider as she thought about why this evidence was not reliable and inadmissible and there's there's not this can't be boiled down i don't think to a math problem it's not what we have sincerity that's good enough two out of four maybe that works also this is necessarily a holistic determination that needs to be made by a trial judge is subject to abuse of discretion review but one that is that affords the judge some discretion to look at all the evidence and to think about it in the context of the case there is also with respect of both defendants here ample room for harmless error analysis and i'd like to explain why st i reference to this residual clause question the two counts that are now at issue in this appeal one is a conspiracy to commit this murder abroad and the other is a money laundering count and so the conspiracy required evidence of an agreement to commit that crime  the defendant in question left the united states so this issue for sami of whether or not he was there and actually shot catherine lee i think that there's ample evidence of that but that's not really the precise question for analysis of the section nine hundred and fifty six crime with regard to the money laundering offense it wasn't necessary for us to establish that the defendant in question actually committed the crime that constituted the on the unlawful activity that generated the proceeds and so again the focus for the homeless and error analysis in this case is not necessarily on who pulled the trigger to murder catherine  it's whether these men joined conspiracies to do these things and you've already catalogued the substantial evidence that supports that in friends with respect to stillwell and with respect to the points you made the timing is also very important the phone call that you referred to is on september th two thousand and eleven days later on october th sami is e mailing with hunter and making plans to travel to brazil to discuss the murder and the murder plans and he sends an e mail that says my guy here still is eager to work and then it's just four days later on october th that still well access is the materials in this interesting stuff all there but those were documents saved on the laptop there was testimony from that a friend examiner explaining that stone wall actually opened some of those documents on october th so the evidence is not that there were sixteen thousand documents and maybe look at some maybe there were specific documents including one titled how to kill someone with your bare hands that was opened that were opened on october th two thousand and eleven and that's that the evidence both from its efficien night adam samiam pulled out a twenty two dollars caliber handgun turned around and careful aimed it carefully and shot catherine way twice in the face killing her instantly what evidence other than that come the some called redacted confession of the the uk i'm still well supported that thank you for getting that judge i was hoping to clarify this point the evidence is the testimony of timothy van baucus and so in that opening statement at that point the prosecutor who gave that jury address was describing the anticipated testimony of the cooperating witness that testimony is that seven  of the sami appendix in it's for context nine pages later in the transcript where the the anticipated redacted confession is described so it's not as if those things were describ tandem and that that was the evidentiary basis the part of the closing that is challenge along the same lines is also referring to the testimony of mbox yes and i think that is that sami appendix nine hundred and twenty nine and on that page of the transcript i think the quotation marks are actually they made it into the transcript because there was a slide on the screen of the testimony from him baucus so so there what there is a separate independent evidentiary basis in the record for those arguments and i think it's also important here that judge ragin made clear in jass that what matters for a brewin analysis is the statement itself in their back to statement on the four corners and i think the right and the pertinent part of jazz is the critical inquiry is thus not whether a jury might infer from other facts whether evidence and minute a trial or circumstances and i think it's that that is referring to the testimony of mbox yes and that hunter in conversations with laura you also describe some of those details and some of those details are also clear from the video recording that was made in thailand in two thousand object somehow it still doesn't fall within nine hundred and twenty four is that right basis of this decision in part make a new pitch on sentencing that is judge would be able to review the matter again honor just on that last point the reason for that would be because the count that is gone is a mandatory life count the court would have to have the discretion on remand to decide whether something short of a life sentence is appropriate and i will add parent that equally that the guidelines would provide for life imprisonment but that's not mandatory given the book or line of authority and the court could obviously vary from those guidelines to answer that question and then to your honor's question about just reading about why this is so anomalous and the reason is because it's murder in a foreign country over which there is no jurisdiction unless it's a conspiracy the part of which is in the united states which is the whole basis of fuck our sufficiency appeal that's why it's an anomalous result not much about the islands of conspiracy to murder that bush's argument about the catalogue of facts that your honor pointed to judge reggie involving sufficiency that one of the might neglected to mention on tactical gear there's there's no evidence that any of the tactical gear that was purchased was actually taken to the philippines or used in connection with the instant offense of it has very little value and the nd similarly with regard to the forensic evidence involving the files you know access is a critical component of this which the district court recognizes can only be extended so far getting into this question about whether it was opened in viewed i appreciate your honor's point it's relevant about the temporal significance of this but again tempora significant as to what what can you infer from that and your point is you cannot infer beyond a reasonable doubt that that carries intent to commit murder in a foreign country that that's really the point and so the the value of that forensic evidence at least under those circumstances is limited and then finally i will mention one thing that was referenced by the district court in the catalog but not by your honor judge reggie and that was this this argument about well once mr stillwell got to the philippines he was always free if it turned out to be something other than what he thought it was to just jump up and leave and go back to the united states there's a number of problems of that we touched on one of them which is the the th amendment implications of that which does not require of course the defendant to come forward with any evidence about what you know his reaction was there was evidence is that he did well and there's no well but there's no proof of any reaction that he had which distinguishes this from the cases that the government cited in its brief and the nd i think and and more important thing is that again this  another example where you know from the verdict now having to be vacated because twenty four the game speaking in it the jury found that he actually participated in the killing so it's not a matter of well he just conspired and we don't know when we know that we have a jury that thinks he participated in the mart understood but again if the if the critical issue that everyone can see is including the district court is what the defendant's intent was before he left the united states my only point is looking to evidence in the philippines to try to jump that inferential leap seems to me to be of limited value precisely because and this was consistent the evidence paul wrote testified about conspirators who were transported to the philippines as a as a concrete example who didn't follow along with the conspiracy were murdered themselves dave smith being one of them so to make an argument as the district court did in its decision that there was ample opportunity mr stillwell to leave the conspiracy in the philippines if it turned out to be something other than what he thought it was really wasn't an option and i don't think anything can be inferred from that that would be of any significance relative to the decisive and critical issue in this case which is could infer criminal intent in the united states that the purpose of the conspiracy was murder in a foreign country were asking the the court to hold on appeal that a rational jury could not do that which is why the rule twenty nine motions should have been granted in the st instance thank you thanks very much the government has completely free characterize the standard under rule seven has elevated it far beyond the squints decision in sharing by requiring reduction of risk to all four factors which i submit we have here but you don't need to determine that and i would ask this court to look at the d c circuits decision in slaton and in that case it was a clear error standard the standard actually harder in the d c circuit and the d c circuit reversed the district court's finding that that evidence was sufficiently reliable and in fact an re trial the jury ended up convicting it ended up rejecting the statement but that does not mean the d c circuits decision was wrong the standard is does not is witnesses were able to correctly identify still while the government has no explanation from memory problem asked to the sketches and this is a cold record there was no hearing the district court has the exact same materials that the score does the witnesses statements never express any limitation and inability to observe their opportunity was so much better than most evidence you see they did speak about the killing had stone and a vase of conduct but their point was that these individuals acting suspiciously and there are no are so detailed so specific years after the event and it makes sense because as this was going on they thought something was really a wry and they begged miss lee not to get into a car with these men and they learned the next moment the next morning she was murdered this was a deeply memorable experience and i think if you look at the notes you will see that there is just no reliability problems such that the jury should not even have had a chance to weigh that evidence and opening the government's opening linked mr simeon to the can fashion by using identical language that turned around and shot catherine lee language both in describing the confession and describing the  no i believe he did i believe and the fact that the witness who had practiced with the government had used that language and now is the exact language the government used and summarizing still is confession and its own words was only more incriminating but my objection to the opening isn't the lack of evidentiary basis it's the linking and the i'm doing as to the closing