did notice that i wrote something in my brief on page nine that he was a convicted convicted felon and i i must have a confusion but that on there from the judge's opinion which he really got on these issues in the in the there really wasn't any evidence of the it was a convicted felon there was evidence that he was on federal supervision and he was convicted of a federal gun offense you know whether or not the officer knew he was a convicted felon i think that's subject to question i so i think the two critical issues probably during that twenty one minutes of detention is whether or not officer knew that there was any evidence of a supervision but for what a misdemeanor and the fact that he didn't have a driver's license no proof of insurance and just could only give his name and date of birth was it wasn't that the sort of lack of information that would require some follow up on the part of the officer and judge kelly thank you for asking that you know the rodriguez case sort of gives us the beginning and then of course we've got numerous cases after that about that issue and and i would certainly that is grounds for further detention to figure things out but i think you combine that with the north dakota offense being just a minor little traffic offense which could not find and i did that they once again asked for an id and the da at some point on a small little ticket the officer just could issue the ticket either with a warning or they can just simply issue the tekken i mean they can take think if it was determined that he was under suspension and could not drive he could not drive away but i think failure of a crabbers license would be addressed by a citation and then you can read what i thought they looked and they couldn't find whether it was on suspension or anything because all you know is that he's on federal supervision but he could be on federal supervision for a misdemeanor so i have a judge kelly's questions most interesting to me and of course immediately it's the no driver's that's gets got to be pretty quick and you know we have many cases where it's it's kind of one thing after another thing and of course here the next thing is the holster and then the handgun at what point do you could only say holding somebody for twenty minutes in my view this to seems to be an awful long time for a simple safety ation for not you know the in this case nothing else was proven for holding the individual other than you know what suspicion we have been all along can you hold somebody on suspicion that's really the question i'm not denying that there was suspicion but all along can you keep him there on that suspicion but but  then and i do think this is my better argument on the seizure issue is handcuffing the individual i think now we go into a different element where it's a defacto arrest and i i would argue at that point that is well i would agree judge loken and thank you for mentioning that but i it i mean i obviously discord as many cases on the defacto arrest issue and i guess i would argue under these circumstances and how it was handled that arose to that level where it was a de facto arrest song if i could move on to the to the issue of using the suppression hearing testimony against the defendant during trial you know we start with the is the ovoid of the issue thus far as to telling us whether or not evidence from the defendant's suppression testimony can be used to impeach the defendant during trial in the you know the guilt well and i understand and i'm ready to concede that numerous appellate courts as pointed out in the briefing have found that they've distinguished simmonds and so that you can use testimony  from a defendant's suppression hearing when they testify to impeach them if they testify in trial this court has not ruled on that issue to my knowledge but i would argue if you just look at the principles this issue is that we don't want to encourage people to you know commit perjury either so that's why we are allowing this testimony and to impeach them and what i had if we were to have find th however we i have to say that all of those other courts that just got it wrong is that kind of one of your biggest hurdles here that even if even if you could make the argument it's error whether it would be plain what is kind of a difficult hill to climb in the net oh i understand i'm on a difficult hill but i mean if we go with the with the original concept of someone's say i mean i'd like to argue that these other  testimony that was used by the u s government went to guilt there were two very important issues that the united states was able to establish by using this testimony because the biggest issues they were to with they were allowed to establish that mr never had it inspected the vehicle there fight there by showing that he would have known the the firearms were in the vehicle i do see my time is running low so if i could wait if i could use the rest of my time for a bottle early good thank you your honor i am david hegner i am assistant u s attorney here in the bismark office representing the district of north dakota united states of america in this matter your honor a couple spawning st to a couple of mr mccabe's comments regarding the fact that he says this was just a minor traffic violation and that is indeed true at the outset that  officer stopped mr navarrette for having a headlight out however under north dakota law it is it is a criminal violation to operate a vehicle without in turns and as of your honor has pointed out  it's also d a criminal violation to drive under suspension and when the officer the new should we only could get mr never as name she appropriately went back to her vehicle tried to get a records check on him and there was no driving record that could be obtained so as the court has pointed out it was appropriate for her at that point to attend to gather some additional identifying information so she went back to mr never and will and at that point as a set forth in the briefs in the factual basis and the court's district court's findings mr never was checking his pockets but he was and of course that took a few minutes to come back and get nothing she then returned and he was ultimately detained eighteen so between tool for him to eighteen she returns to his v he steps out she sees the loaded d magazine so it's just that very few minutes in addition your honor that it takes for her to see that another red flag going up having now with an individual who can identify himself who is on federal supervision who is driving around with a loaded gun magazine within arm's reach she then again minutes later pats him down under now has very clearly a reasonable suspicion that criminal activity is afoot it's not it's very reasonable for her to conclude where there is a handgun holster and a person there is with in a very short of sanity a gun in the record is also indicated he then when she asks him where's the gun he moves backward so now we've got off for safety concerns which leads to detention then the handcuffs and again we see in our brief it's circuit authority for the fact that it is it is appropriate for an officer to handcuff an individual to detain them during a cherry stop so at this point she's got this litany of reasons why she needs to investigate further to determine not only whether this man has a valid license to drive away as your honor his point but whether or not he is in the in the illegal d possession of ammunition and or so we think the record is very clear on that issue and this was an appropriate stop of that st issue is that counsel says well gee it may have only been a misdemeanor and therefore the ops are didn't have a basis upon which to investigate further well that gives her all the more reason to determine  she doesn't know without or she's got frankly an obligation to determine exactly what the circumstances are so if there are nor the questions on  the st issue all i'm moved on to the nd issue and that is the use of d the hearing testimony the suppression hearing testimony so as the record clearly reflects your honor never testified at perching hearing and you should there was the traffic stop whether it was a legal traffic stop and in particular the issue of the headlight being he testified that the suppression hearing that he had purchased a vehicle two days earlier had thoroughly inspected it and the night in question when he stopped he had actually walked past the front of the vehicle that had li was on so he was questioning the veracity of the officer on the issue of the headline while the court denied the motion and we proceed to trial the united states did not introduce any of his hearing in particular he testifies at the trial now that he had not purchased that he was test driving the car he had been in the car for approximately ten minutes before the officer pulled him console and the driver's seat and then there were two long guns that were sick created in the back seat but the handgun itself was in plain view in the front was driver yes this was going on as opposed to an officer standing but i wasn't sure yet and then from a legal standpoint i would argue it was also in plain view of the officer who again we have to start contrast the testimony so all during cross examination i pointed out the disparities in the testimony between his earlier testimony at the suppression hearing and his trial testimony and then during closing argument i count this specifically in terms of two of the jury instructions probably the most important one being the credibility of witnesses to the jury was you are the fires of facts you determine the credibility of witnesses and you heard testimony that he had the vehicle for two days versus as a vehicle for ten minutes you can consider prior statements made by a witness including a set forth in the jury instructions so i indeed did point out the specifics of his testimony after suppression hearing but to compare it to the disparity between his testimony at the trial would you agree counsel that it is it is a fine line and i and i appreciate what you're saying and then suppression hearing chain have to be used if it's objected to so in this case there was never any objection to any of that so objection i think that sort of develops in your argument that well if if the language of it may not be there after admitted against him a trial on the issue and less he makes no objection in other words that's the end of the analysis that doesn't really go into a waiver or fit your kind of analysis that i think another reading of that could be unless he's like ok bring it in that's fine i'm i'm i'm ok with that kind of evidence coming in so i understand your argument but i wonder whether we're reading a little bit more into you know five were of a supreme court opinion that maybe we should be very good i'm unaware of any case anywhere in the country where what happened here was was a violation still busy we simply can't get to play in error when every court that evidence of guilt and i believe if you carefully review the entire closing argument with the revival i continue to couch it under the terms of we need to consider all this testimony to determine the to say i've got a big clock on the top of my screen but anyway to get to that last issue which i think is really really fundamental for this case and that is this mr taylor says  are number of cases number circuit court cases but but i believe they all addressed the issue of impeachment they're all about impeaching the witness not about going to an element of the case that the government's established seem to to get a relying upon simmons and then i guess the extension of target taishan of simmons from this court in artists words of that i'm under a plane or so that i think that's where i see myself as under playing there for the lack of an objection so at least under simmons and from this court partisan it seems that we have a real problem here when the government is using evidence from the suppression hearing to establish an element of the offense to actually have established guilt and we can talk all day long about that jury instruction that mr hagler talked about but at the end of the day the final thing the jury was told was that i story but that goes against the jury instruction that these just told them to look at and i i very much agree with judge kelly how she said it's a fine line but i think that line was crossed when mr hagler and i very much appreciate history he's a great attorney but that that cross the line one when you tell in rebuttal the final word of the jury the tape just uses suppression testimony to find that he knew that the firearms were in the vehicle i mean that's the last thing neighbor and i think that goes against simmons i think it goes against the plain error review that was set forth way hardison by this court and  just if it isn't clear to the court it and i think you know he hired a new attorney at the last minute it's very painfully clear the attorney did not know about the suppression hearing transcript and he was caught flatfooted during trial and for whatever it could be viewed as structural error for what happened there i would ask this court to review that as well as they have my final paragraph to thank you so much your honour's very good counsel case was th