all very much for participating by phone judge joe flat judge hall and i will do our best to try to make sure that this works seamlessly we may have a couple of instances where we talk over each other because we're not looking at each other and have no visual cues but we'll make sure that we try to work it out as best as possible if at any time you don't understand what we're saying or can't hear us please let us know and we'll try to get our i t people to fix the problem valerie our court room deputy will give you a warning when you have about two minutes left and that'll provide you with at least a guidepost about when your time is drawing to a close with that it will start with our st case which is number eighteen  thirty four to six united states versus dairy is caldwell and how do i pronounce your last name is it moanin or mo ok mr money whenever you're ready we know your court appointed for mr caldwell we want to thank you on behalf of the court and obviously on behalf of your client for the service that you're providing we really do appreciate thank you judge jordan and that's actually one of the things that i was going to mention i'm not appointed so we have purposes of this appeal but i actually tried to recall those case i was appointed in the pretrial phase of hi prosecution and i tried his case and judge cohen appointed me to his appeal so my representation on appeal also involves the motion for new trial which came after my client's sentencing while this case was pending on appeal so i'm not sure the degree to which the panel sees appointed counsel who have both tried as well as handle the case on appeal but i just wanted to note for the court reference that the that's my status in this case doublethink whatever you're ready to get thank you very much so i have great three errors on appeal the st is a judge cohen should have granted my motion for a new trial which is now before this panel based on not misrepresented but misstated testimony by an f b i examiner who appeared at trial  a show up identification involving the victim teller where the police after arresting my clients and had him in a squad car in handcuffs transported the teller to the scene of the arrest and then conducted to show up from there and it's my contention that that showed up with unduly suggestive and prejudicial to my client because the government then introduce that identification testimony at trial the rd issue that i insurance status of the victim branch and i know that this may sound because the victim branch in this case was the bank of america branch money ga obviously there's not a lot of contention or there's not a huge amount of concern as to whether bank of america at the corporate or national association level would be federally insured but i believe that the case law including a case in which judge show fla that if the government is going to prove federal insurance for purposes of the bank robbery statute it is insufficient to simply bring in a court security officer with a charter a federal insurance at the national bank level and simply proffer that charter which in this case was from decades ago and say that that national charter necessarily just based on the core are not court based on the corporate security officers s the victim branch and i don't i don't you think this is judge jordan mr martin i don't i know you think the evidence was sufficient but there was a little more here than just that testimony right well yeah i mean testified she brought the evidence down to the level of the branch in a way the bank of america security officer did not she spoke about if the f b i the audit she spoke about displays of f d i c insurance at t branch and what goes into being able to show that she spoke to fees being paid all the way down to the branch level so yes judge shorten i quoted and i am clue to the colloquy that i ha on cross with the corporate security officer for the bank of america branch and i do believe yes it's true that the court the corporate security officer was speaking in terms of in his experience the evidence at trial including following some questions from the court itself so i i just think that there in the cases there has been a criticism of the government for doing exactly what happened here which is bringing in a corporate security officer putting a national charter of insurance and basically leaving things at that level other than the corporate security officer of there the new trial motion i want to be as clear and careful as i can and i'm not a d n a expert to the point that i made earlier about being appointed twice in this case i feel like a bit more  one certainly strawson opposing counsel well understands the d n a evidence in this case as well but what we're talking about here is when i was a prosecutor maybe put d n a evidence in the tendency from the f b i lab examiners was to speak of the likelihood of the defendant himself or herself being a contributor of d n a to a defendant himself with the contributor as d n a to the reference sample what we're talking about in this trial members of the panel is a proffer of d n a evidence where all of the implements of the happened the trial and i haven't gone into the trial record yet so maybe you could help me judge cohen but you cohen says in his new trial order on page seven examiner testified incorrectly on three occasions once with regard to the wig ones with regard to the gun and once with regard to a hypothetical but judge cohen also says that the examiner use the appropriate language when testifying about the gun in the wig during other port portions of the testimony so i think judge cohen saw this as a case where the evidence the testimony wasn't completely incorrect but was sort of double sided and i'm wondering if you think that added to his decision that the right testimony would not have likely resulted in a different outcome  st she testified incorrectly with regard to the model of what her testimony would be the hypothetical was at the outset of her testimony regarding the likelihood ratio and again the likelihood ratio is comparing two families one that includes my client's d n a and the other is a completely random sample or of three or four contributors so it is more likely that you would get the same result if my client and they were included in the sample that is the correct testimony she testified however incorrectly with regard to the knife handle and giving the example of how likelihood ratio is actually work judge judge judge jordan so would contend there that at the outset of her testimony on likelihood ratio she got it wrong the other thing that is very very important here is that there were two charged bank robberies my client was arrested after the nd charge bank robbery obviously there his identity is less of an issue but after the st charge bank robbery there was no one asked what the government did and its order of proof is prove up the nd time bank robbery including my client's arrest then put the d salmon on to prove the d n a and then the st bank robbery and what i mean by that is that one of the times where the examiner testified incorrectly was on redirect examination which respect to the handgun and the prove that my client d n a sample had it warming thank you if they could prove judge jordan that my client d n a was on a handgun they basically could prove the st in time bank robbery and the examiner's incorrect testimony americans so what she was saying to the jury is that there's only six hundred dollars other individuals including individuals of every race that could have contributed to that and my client is african american if you reduce the sample  african americans it would likely be about one in eighty or one set but that's the issue that i have with the d n a evidence in this case is that where the examiner erred it was in a way in which she was very very quickly by the courts we have a twenty one page order here from judge cohen and i think he struggled with it because he knew the importance of the d n a evidence to the proof with respect to my clients on the st and time bank robbery i know i only have thirty handcuffs surrounded by the police it's obvious screaming and headlights and right flashing lights that my client suspects and he was identified not specifically but he was identified in general terms by the teller and i just think that that violates pretty much every norm suggestive and prejudicial show us that you can have and the error was not only in suppressing the evidence but the district court allowed that identification testimony to come in at trial when to identify someone quickly and emergent circumstance my client had been arrested for twenty or thirty minutes by that point in time and your mind and your your your argument has appealed to me but how do you get around prior precedent like johnson versus duggar which allows a relatively similar identification with the water to person show up i think the issue there judge jordan is that that type of identification goes to the investigation as opposed to the prosecution and what i'm arguing here is that the link up was that it was offered as identification testimony at trial it wasn't used investigation only we obviously you can have a show of one or two person show up to for investigative person purposes is this the guy and you continue the investigation from there this is different because it was introduced in the trial as substantive identification testimony i think that's the principle distinction ok thank you very much you save your time f make your hobson whenever you're ready thank you your honor may it please the court my name is brett hobson and i represent the united states this court affirmed all three of the rulings that the defendant has challenged on appeal and mom of course happy to discuss whichever issues the court prefers and whatever order i will go ahead and start with the f b i see issue which the defendant started with the defendant's argument on appeal focuses on whether the particular bank of america branch was insured and this is just a red herring there is no more need to prove that the branch was insured than there is to prove that the teller had insurance that is factually not how f d i c insurance works and there was testimony on this point by both the bank of america and no rep at trial and even more importantly this is not what the bank robbery statute requires looking at likely unless you can i ask you a question i thought there was testimony that the particularly branch had never missed a payment is am i wrong about that there was testimony that the bank had never missed a payment and that it extended to the branches there was testimony to that but there that wasn't even necessary is the point under the statute tw her care while she's working at bank of america and then the un contradicted testimony of william anderson the vice president of corporate security stablished the bank of america the institution was f b i insured on the day of the robbery so we're not in the world  card which mr monon referenced we're not talking about having to infer that the coverage extended to the day of the robbery we have direct testimony on that point at least twice and i think maybe across as well for mr anderson that the bank was insured on the day of the inquiry you don't have to prove that the bank branch was covered there like i said there's testimony explaining that there's one f d i c insurance number for the bank it extends to all the branches you know it doesn't matter if the money was in a branch or was in a armored car on the way from one branch to to the d n a issue it's important remember the posture we're in here with this d n a issue the defendant filed a motion for a new trial based on newly discovered evidence these motions are highly disfavored in the circuit and have been described as an uphill climb and this court has repeatedly warned that they should be granted only with great caution and only in exceptional cases and in order to grant the motion the evidence must preponderate heavily against the verdict and importantly to the defendant's burden to show that he was prejudiced and that a new trial is warranted now this court of course reviewed the lower court's denial of mr caldwell of motion only for an abuse of discretion and look at the same five factor test that the district court looked at and under this test the defendant has to establish all five prongs to get a new trial here however mr caldwell fails on all five prongs but this court's analysis can begin and end with the th factor and that is whether the new evidence at a retrial would probably result in an acquittal and as the district court correctly ruled below it simply would not now looking at this factor we have to look at two questions what is the new evidence and what other evidence came in a trial that would come in again every trial the only new evidence is this two page letter from the i lab giving its post trial assessment of child testimony and the letter notes that the d n a examiner deviated three times at trial by using the word that when the word if was recommended and stating a likel ratio but as the office of general counsel email the transit of this letter notes the examiners deviations were not an error there is simply no statistical or practical significance to the deviation she made don't round that can't be right it is right your honor you mean you mean to tell me that the testimony didn't change in any way because of her use of words no i mean to tell you that the use of words all it did was make it an awkward delivery it did not have any practical or statistical significance and i'm happy to explain why that is go ahead so out around this time as also explained in that e mail the transmetal letter at the f b i lab was switching from one statistic called a miranda match probability to a new one called the likelihood ratio and the office of general counsels lawyers not experts themselves were being abundantly cautious and sending letters about any deviation with respect to likelihood ratio statements that they don't cover during and that evidence about them would probably result in an acquittal at a new trial i know what you started out by saying that they weren't significant at all so you get the questions answered absolutely and i'm happy to answer that question i just want to make sure that in answering that question i want the court to realize that the government of the defendant had the burden and he utterly failed to establish any reason that they matter but i have to explain why they don't you know he could have presented new testimony from a d n a expert or statistics expert or someone to explain why these were significant pieces offered his conjecture in the br that they weren't significant enough to merit a new trial into the trial of the new trial standard but he disagreed with your contention that these were not material right yes your honor that's right and  really is helpful the letter states quote the meaning of a likelihood ratio statement can change if not days precisely or if inadvertently transposed and in some point remember that word transposed coming back to the letter then gives two examples of how to state a likelihood ratio and what it means that one correct example in one incorrect example and a letter explains that the subtle difference between these two examples technically changes the meaning now the correct example was the d n a results are one thousand dollars times more likely if and then some conditions and the incorrect example was it is one thousand dollars times more likely that the individual is a contributor so what is the subtle difference between these two examples the letters incorrect example not only replace the word if with that which is all that the examiner did a few times a trial but more importantly from a statistical standpoint it replaced the d n a results are one thousand dollars times more likely with it is one thousand dollars times more likely now this is called transposing the conditional and it is a common statistical error and in doing this in transposing the conditional it changes the focus of the likelihood ratio statistic from the likelihood of getting the d n a results to the likelihood of the person being included as a contributor and you think the jury would have figured all this out absolutely not which is the whole point that it is not that's why it's not material to the jury's verdict it is so subtle that mr caldwell says we cannot even notice a try how can we expect to we exercise  this subtle difference is so subtle that it doesn't make a difference and it doesn't have any practical or statistical significance now if i had an hour i could probably explain to you the statistics behind this transposing the conditional and why there is a subtle technical difference when you replace the d n a results are with the it is and i could also if i had that time explain to you why it doesn't really even matter if you do that practically speaking when we have a very large likelihood ratio like we do in this case but we don't have time to get all the statistics suffice it to say that if the examiner had transposed a conditional that is if she had replaced the d n a results are with it is that would have at least had some significance those still not enough to warn the trial here but the d n a examiner never made more likely and again on redirect the d n a from the way it was the d n a from the gun was and on her lab report which was what went back with the jury as an exhibit it was stated entirely correctly and with if instead of that a also the d n a typing results for the wig are the d n a typing results for the pistol are so again it's not the government's burden to explain why this isn't significant but this is why it's insignificant and mr caldwell cannot offer just his conjecture to establish that these were somehow significant must have affected the jury my for my part let me just say that it would have been helpful had the government tried to present that sort of explanation in its  brief and it's just it's just not there yes ron i apologize for that it is a dense subject that we have struggled to even explain what the significance is and is only taken along a lot of work to even be able to get to that explanation i apologize for not getting it in the brief but you know even if that had been a significant change there was overwhelming other thank you ana thank you get us there's overwhelming other evidence that was presented at trial that would be presented again in a retrial which the district court noted this letter would not exclude the d n a evidence on a retrial you'd have the same lab report go back to the jury if you have the same conclusions mr caldwell as include is a contributor you have the same numbers the same statements the strength all that would come in you would also have substantial overwhelming evidence of mr caldwell guilt in the pendant of the d n a evidence you know he was apprehended ten minutes after the robbery crouching behind a chimney to streets or from the bank etc but since there will be time is there anything to mr monnin contention that we need to view the two robberies differently with regard to the impact if any of the mistaken d n a testimony if there's any differences it's that the d n a evidence went only to the bank of america robbery mr caldwell essentially concedes that there's overwhelming evidence as the bank of america would be different and so he understandably tries to tie the d n a to the no robbery but no one did that a trial and it is nonsensical and that's why the government didn't go to trial these items were found after bank of america mr caldwell d n a was on them even though the government says that the ban robber hesitates outside and there's a computer store video from behind a bank that is incredibly clear and shows mr caldwell the stink of profile and high hairline and frankly that video alone could have convicted mr caldwell of a no bank robbery and i'm happy to talk about i think  out of time but i would be happy to explain that the limited id was not suggestive and it was reliable but we can stand on our briefs on that as i would just point out that this was a very limited id she said he's the same height and build and has the same clothing of the same sex and race of the robber and the government emphasize the trial you're not saying you recognize this guy's face that had a bandana on right and she said no and so this is a very reliable limited identification the police didn't do conditionals or anything like that the fact remains they put the d n a evidence because they wanted it for purposes of identity they didn't really need it with respect to the bank of america robbery as i mentioned before the order  and then another time it was to the gun and the gun was found next to him at the time of the nd robbery or in the bushes your honor both the wig and the gun were found in the bag that was near by my client dealing with these items that it was his wig and his gun that was well you're on pretty solid without the d n a right ok what was the rd one was there anything about the but the predominance of the evidence the arguments and the evidence that was put on by the government as to identity on the st sometimes you know a bank robbery really did center on the gun the agents testified has to how the gun was handled by the robber they pointed out the distinctive coloring on the gun and the crystal clear video that mr hosty describes there's no gun blade there and what we're talking about is at the time of the robbery robbery in the bank the images are very indistinct of the robbery eyewitness testimony in relation to the robbers identity is not with the bank of america robber or heights are different  am trying to see it be a different case if they didn't this was just some random guy on somebody's fan and they were using the d n a to link him to the gun that's it but here's the link to the gun was he was found with a gun right after the bank robbery what i'm trying to say it does your honor what i would say in response to that i mean i think and i don't mean to put words in your mouth but i think what you're saying is are we really just talking about the d so the d n a was kim you said it better well i think we're still we're still talking about the d n a having been offered by the government i've also cited case law and i think we're all aware on s of the significance of d n a evidence i mean the jurors perked up i was there in court because attention to the testimony they're interested in this material in my experience trying criminal cases jurors want to get things right so they they think about and i don't have evidence on this but they want to think about all the evidence that is offered to them as to identity and yes we did have a relatively distinctive handgun used in both crimes but the government still made a decision to put on the