i want to emphasize that he's nach an argument about credibility we disagree with the government this is an argument about sufficiency of the evidence  still in the fish and there was only one person who was present at the time of the granite there is other evidence that he had a gun no i don't offer occasions that well there's to the ability to find it on this occasion there was a gun that tony perceived i mean you would agree i'm sure that if there was a gun it happened to be under you know a piece of cloth but the person could feel it then we know that there's a gun there tony s the glint of metal he just scribes and fairly good detail what the gun looks like he knew that mr resnick had a gun and that taken together with the kind of evidence the judge bowers talking about that this is a man who typically had a gun with him you know he gun guns were around you can and that tony is behaving and so if there's a gun being brandish there it's just pieces of evidence that he doesn't actually see the whole gun in front of them because of course the guy's talking to a trooper he's not going to do that that he sees the glint i think i think we can i do not dispute it tony believed that there was a gun maybe gun at another time not get he produced a gun in neck truck at on some other occasion deed he brandish a firearm it tony tony says i think he did but i really don't know he says pretty sure i'm not sure what kind of guy it is and he doesn't he says he doesn't see one hundred percent of the gun but he says in the jury can evaluate this when asked the question are you sure it was a gun he says pretty sure ma'am going off on what i think is a side issue of worrying about whether there is a disagreement between this circuit and the ninth circuit as to whether there is no you don't have to worry about that we careful balancing under four o three as he's supposed to do which is what our rogers decision said i thought he he walked through it aside from this one mistaken reference to  analysis their analysis was changed by his incorrect belief that in the balance there is a presumption of admissibility that's the problem i have that's why i think that although he did  i think it's a real worry here is whether the admission of that evidence which is relevant for propensity may have a tendency to to loop the burden of proof in other words what we're worried about is the jury maybe has its doubts about tony i think chief security questions but he's got a cellphone he never complains he's out walking he's away from david he's out walking with the dog he never complains there aren't these things can be explained but there are reasons why the  about that's what we're not just horribly entity in france which for fourteen allows in this kind of cases it's not that propensity evidence is irrelevant it's that it's almost too relevant so under the regular for zero for the it's kept away but for fourteen congress decided to reverse that let it come in for whatever it's worth subject to four o three and the district court whose decision we think this is very very very troubling evidence that it came in handy there was no reason that i can understand why a polygraph should have been interjected into the case by the government and what it's worth if this is the factor we consider in plain error review we don't know why there was no objection i can only speculate that it once the cat was out of the bag there was nothing for counsel to do but try to put the best face on it it's possible come up with some sort of a response we don't want the want to make a big issue but but for whatever reason  there was a lot of other adults in this case how much of an effect with this polygraph evidence had for the same reasons that there are some question about tony's credibility to the point it's clearly a jury issue the issue yes there was other evidence related credibility but dished polygraph business what i'm really i suppose much really troubling about it is the testimony well i want to talk to my attorney before i decide what to do about a polygraph then they bring have well your pa got that he did talk to his attorney didn't inadmissible evidence well i guess i would disagree with the idea that this is this is a fifth amendment right here because he didn't say i want to answer that question he didn't implicated in that nor the fifth about to start with us if you have to warn support and i leave out the ninth circuit to support that position i would say that the position from the ellington case that we brought on the ellington case that we brought him that was not seven circuit it was northern district with judge kendall who and i'm not taking a polygraph until i talk to my lawyer and he talks to us lawyer and he declines the polygraph and there was repeat evidence on this through the case agent and then comment on it during closing argument well we saw this someone who gave up their fifth member i volunteered answers all right said he and i always stop the investors stop the interrogation at any time you can't you cannot comment on his recent trip to and i agree that that he could he could stop at any time but he didn't say i don't want to answer that he knows polygraphs involve asking questions and he's saying i'm not going to answer those questions but it's a form of interrogation and you know a truth telling measure that is strongly disfavored and in effect i mean banned in many jurisdictions well and when we went off was this when when it came in that there's nothing in this turd stiction that says you can't do it i don't i guess i disagree that it's a impermissible comments l deciding whether to admit or exclude evidence relating to polygraphs and and most of the time it's people coming up and saying the judge denied our ability to go into a polygraph on both sides but the court has never said you can't do that and it said envision most you're looking for now as a card to say something on the ship and we will well i think what we're trying to say is that when the when the district court hears this for the first time there is nothing with this court that says that you can't do this then it can't be playing air this court has said that if there's no clear evidence from the district court then there's no there's no chance of making it plain error if you're saying this is a matter of first impression of this court the trial court to go into a discussion of this before and then it's preserved for review and we would have a nobody not one single case ever set it's a question of whether or not you can say  why would first i would make something clear on this case that the government never brought up the attorney in this case that was brought up by the defense during cross examination katie so that so if we were going into that part of always or usually in final argument it was us final argument it was used for the position that when first said i'm going to refuse to take the polygraph because i want to lawyer that itself was a deception that he had never ever any intention of doing it that he was just saying i want to look like i'm cooperating i want to talk to a lawyer and he never would have taken it and at any time that's why we're on twitter we're getting around the program well i think i think we have to look at it from from that plane air standard and i want to make sure that we're clear on that  that there's nothing there that says that it couldn't be brought in and then once we hit a plane error in this case we have the evidence of tony who came in very credibly and talked very clearly about his abuse we have the evidence of kyle who came in very clearly and said i was also  we have sixty hours of his of his collection of this type of abuse for children that he had on him at the time i'm not defending anything he did i understand when i'm on talking about is what you want  court which approves the idea of telling the jury that he refused to take a light just until the two hundred or and that then he still refused to go like this that's perfectly evidence you have to get to a place where a miscarriage of justice would have taken place it just didn't take place with all the overwhelming evidence i don't think you get there i do think that this court could say as they did in the ellington case that there are situations where for consciousness of constitutional rights and say see this was a voice exemplar that some of you had someone on a on a wire right and then they said ok what we want to will you let us record your voice so we can compare that and go forward or a handwriting reliability argument is if you have to establish the reliability of the ground you know before you can make an argument that this demonstrates consciousness of costs otherwise we're just in the sort of pop culture you know t v crime lab you know well the universe and not the real universe where we actually have standards so i guess my argument then would be at least one other judge has has thought that was ok without doing that because in in the ellington case they didn't go into any of that they just said that someone saying that they didn't want to take it because they feel they were going to fail was was consciousness of guilt so my point would be that it can't be plain if the refusal to take a polygraph is routinely admissible on consciousness of guilt and then the police will ask every suspect to take a polygraph i would say that energy role in the admissible i think you have to go through every process you have to do you have to do the four one in the four zero three now judge moody may very well said that this is too prejudicial and would have allowed us to go into it it wasn't give the opportunity to do that and we didn't have the opportunity to play in why it wasn't prejudicial but i think if this was shown as it has been in the past that it's within the discretion of the court when it's brought to the court's attention we'll go through that for all three analysis in the court may say no you're not going to go anywhere near that but we didn't because nothing was brought up there was no opportunity to get that on the