brunello constant on appeal to me i reserve two minutes for a bottle yes thank you the district court found that the photo of a procedure here was quote extremely suggestive and as a result it was quote a very close call whether adam genesis's in court identification of mr constant should be suppressed it made several factual and legal errors which if they had been remedied would have turned a very close call into an order suppressing the this corrupted identification and the danger of a case like this is that a witness in the position of adam dunn as well latch on to his suggestively prompted identification rather than his independent recollection of the person at the scene i'd like to focus my at least my mitchell remarks on pages ninety six through ninety eight of the record appendix and that's the second order on the motion to suppress this is after the video comes in of the photo array procedure which i would suggest is extraordinary in of itself that we have a video of actually what happened during this so called level of certainty in his identification of mr constant photograph there's no legal discussion and i think this is important to legal discussion how lack of competence is a reliable suggestion mr constance photo was pulled out of one folder to another folder and then as the photos are being laid out mr constance photo is right in front of him in the middle even still he waffles he says my money's on this one point  constance photo or this one and he points in a different photograph and of course without missing a beat the officer says so you think it's this one here and he points again at mr constance photographs and this is by the way after he says i'm not sure so it's this one right yeah so he gets that miss if he doesn't ask his level of certainty or anything like that it's a pen so you want to sign  right there sir you want me to sign right here sure sign right there and that's what he does and it's all rushed and it's and it's done and then even more importantly after that he said well before that he says we have the suspect across custody or  got the suspect in custody afterwards he says also that's the guy we have in custody right now and that must have at least there's a very substantial rest that that crystallized in adam dennis's head that the image of this person is who did it despite you know because of the suggestive promise because the police officers telling me right now this is the guy we have in custody so that there's a can agree that it was highly suggestive so the trial court found that the real question has to do with the admissibility of the later in court identification and whether the impermissible earlier identification so tainted the later identification that it should not have gone to the jury or case law does and to support giving it to the jury as the appropriate outcome here so i think it would help if you would focus on the government's argument that there was plenty of proper nitty for mr danise to identify  the person who shot off the gun because in a sense you're weighing how significant that opportunity was against the hazel's rio's this court reasoned that as far as the opportunity to view factor it gave it gave the court pas that the witness saw the person in action in that case in full lighting for about fact and that's the main task is how corrupt is this but as far as the facts in this case we have an argument and when he's asked about this and this is hage six zero nine of the record appendix i think it's very very pertinent here because the governor the mayor say asks what was your most what's your best memory what's your biggest memory about this encounter with this man on the porch he says the argument the argument and that's telling because afterwards what does he tell st laurent he says to st laurent well black man dr lux that's it as far as the hat he also goes on to say there was a hat no one fact that you were the man leaves he threatens to come back with a gun and that makes this and counter particular memorable so what's your response to that my response to that is what dennis testified to which is my focus was on the argument and getting him off the porch and i think that's exactly why he could not give age height he couldn't give any more physical features if it really were mr constant i find it interesting that he didn't mention all these tattoos mr constant had well i don't know why do we even care about lighting and all  this case because in this case we actually have not just suggested an interview but we actually have a video that shows that within twenty four hours of the incident he really was guessing as to who  even one the guy whose face was put right in front of him he said yes this is a tough one i'm guessing it's him or him i'm not sure so since we have proof of what he didn't know why do we have to look at these other factors from which one might otherwise infer what the right yeah i think that's i think that's right in the end because when you're weighing those vigorous factors against the corrupting effect of these prompts then the corruptive the corruptive effect really leads us to suppression there's no i mean it's such an again we go back to you know it takes an extraordinary case well this is the government says you know it's thinking of just calling the police officers but then there would be holes in the story i think i'm in the end probably going to call adam dentist course she does for good reason she wants that in court she want well the defense counsel made a very very i thought persuasive argument that they can so called confession was false because if you read the transits in the record appendix the transcript of this certainly well within the jury's ability to say no i don't believe that confession and there's probably a good reason why he confessed because at the end and the defense counsel argued this notice how he's asking is my girl going to get in trouble to blackwell with of the time is she going to get in trouble ok and then the second thing was he also asked st laurent on the stand at trial what about this guy named c j remembers you got a lead about this guy named c j who also had dreadlocks he also could have been the shooter yeah didn't follow up on that lead about c j so you've got you know some third party culprit that the jury could work with you've got a so called confession they could have found false and as this court found in rio's you look at is there is there really no reasonable doubt here and is this or isn't in court identification he's the shooter in other words he's the one with the gun and he came back and shot up the place is about this this this this is a common practice it was your office yes it is so the jury was well within its bounds to say this is a false confession we're not going to consider i'm margaret magoi for the united states if i may get on with the courts are said you know obviously the court has looked at the desk containing the evidence about the initial identification procedures and were not very happy about it and neither was the case agent the case agent testified at the suppression hearing that this would have been a training video about how not to do it so i am not going to defend that out of court procedure at all i would like to put this in perspective both at the front end and at the back end at the front end in this case the district court held to suppression hearings issued two opinions it's suppressed coleman's out of court and in court identifications roy and cody did not testify at all the government voluntarily agreed not to elicit the out of court identification the court suppressed that out of court identification only allowed mr dennis to testify quote if he can and the circumstances of the out of court identification were elicited by defense counsel on cross examination but let me skip to the backend which is your question judge lynch in your judge judge about harmless error the assistant u s attorney in this case t that right up in rebuttal and i would direct the court to page nine thirty of the record in which she specifically said to the jury that they didn't need to take dennis's in court identification into consideration at all that they could find the defendant guilty first of all because dennis and coleman gave virtually identical descriptions of the defendant that he was a large black man with braids or dreadlocks second that the police found a man who fit that precise description within a very short distance of the crime and a short time after the crime you can tell that that the description is accurate because you have photographs of the pre sentence report and also the photographs that were shown the witnesses third that the police found a gun in the rafters he was the shooter and we have the closing at which the prosecutor said he was the shooter and so although the jury could have found the possession charge to have been proved without accepting that he was the shooter the question landed ok so how could you respond to the fact that the government did rely on him being the shooter in pressing its case i have two ways relying on that count one is that the court's instructions made very clear to the jury that the well but in the end he said finally it was time for him to man up and take responsibility for what he did that he held the revolver for a friend and that he put it in the rafters when the police officers found it can the genesis testimony all together and look at the record that the evidence about the shooting the other evidence about the shooting it's answers well to the possession claim it does yes but but the government relied on that in closing and you know opening and closing and judge howard as you know do you know if if if it can be teased from the record why the identification was necessary to the government's case it's whether it's necessary or whether the government if it's harmed if it's roots such harmless error they could have gone without it i'm just trying to understand why it was put yet it seems to me that that the government has to put the identification in b b because at least one prong of their theory is that they want the jury to believe he was the shooter and they couldn't prove that through the gun so they've got to have an have been i think but i can't think of any precedent in this court that says the government is precluded from using evidence that a trial court admissible we are they have to have it both i don't think that's i don't think that's which i would not i think the proposition is having been told that it's a close issue as to whether this evidence should be admitted at all whether it would be a constitutional er prosecutors are allowed to pick and choose evidence and the first hurdle is to prove beyond a reasonable doubt and the second hurdle is to defend the conviction on appeal and the different standards the standard before the trial is what short if you had all that and that was all there was then clearly you could do ok but what you've got to you seem to be skipping over is that after he did these things after he saw them after the lighting within twenty four hours he's saying this is tough i guess so i'm not sure i could be him could be him so we know from your witnesses own mouth that within twenty four hours he didn't sound like he could identify this one black fellow and thank god from another fellow that's all we had is just the court might he went to court itself flung the test that we apply to determine whether an identification is too suggestive and which when you bring this witness into the from the opportunity to observe in the first instance because one of the other factors in just correct me if i'm wrong one of the other factors is how certain was the person when he when he did the identification during the lineup but  then you have the presumption they were subject to the five part which judge or isn't in great but she made a mistake when she talked about how certain he was when he did the identification she said he paused for only a second and i can't tell you how many times the videotape has been looked at in this court and there are no one second pauses actually there is one there's one one second pause that's when the detect says it's this guy right identify the man who with whom you argued and who threatened to would you that the defendant so the level of certainty i understand is a question that the court has had but in this case the witnesses memory was that he was certain if the court has questions about the other issues i'd be happy to answer them otherwise the government will urge the court to affirm yeah i would like you to take a minute to respond to the following suggestion that the fact that that the videotape is available and it is been the cause of a lot of questions from this panel suggests that maybe police should not maintain a record of their in you respond to that i i think the police are trying to record things because they want this court to see exactly what they did it is it is a source of embarrassment to the agent in th going again i believe i heard at some point the government can see that it was important for it to have this identification in evidence and and i think i even heard a great pink floyd reference which is another brick in the wall of guilt well that he said you will find my fingerprints because as the government just conceded it's a jury question so it might not be enough for a motion to suppress the statement because maybe all these allies the still not enough to just so overboard over bear the well that it's a motion to suppress but it's definitely a jury question and when pressed about harmlessness again the government goes back to the shooter he's the shooter what's the best evidence that he's the shooter adam