the next matter on our calendar is united states vs jonathan guerrero may please the court i represent jonathan guerrero and his appeal from supervised release violation and two year sentence imposed the issue on appeal is the district court's reliance on hearsay without any showing of cause to find that mr guerrero committed second court specifically explicitly relied on the hearsay to find the second degree robbery it is true that later on page sixty eight sixty the court relied on the video itself and said it need need needed nothing else to identify mr guerrero as one of the assailants there were two crimes charge one was assault and one was robbery only the robbery was a grade a violation and triggered the two year sentence the video doesn't show the taking of the wallet in the phone no not not in itself the court to find the robbery the court relied on both the hearsay and the video which it found was consistent with the hearsay statement  the bag out of the frame and then back in the frame but it doesn't show the taking your argument it doesn't show the taking out of the bag if you have to rely on the testimony of the officer that was hearsay and that was hearsay and there was no cause whatsoever no reason the government offered no reason whatsoever to rely on hearsay the defense specifically objected to the hearsay on this ground and the case law is clear it's absolutely settled that there has to be a justification for not producing the witness that it's not allowed but you have to put the good cause for allowing it on the record before you rely on it is that your argue that that's exactly right and there was no good cause ever anywhere offered by the government you don't doubt that it could come up with good cause i do doubt it if they didn't why didn't they they were given the opportunity this was there were two separate sessions and this was briefed but the court  incorrectly that hearsay was just admissible about bringing in the victim they never attend no they did not bring in the victim and the question is why you know one of the issues might be that there that he really couldn't testify that there was a robbery we don't know we don't know that his wallet his phone according to the hearsay statement right and it's to it's totally hearsay and so the only question is whether it's harmless i mean it's clear legal air and it's not harmless because if you look at the video on its own it does not show there robbery is taking place we don't know from the video what was really going on here if anything it looks like maybe they knew the victim and were attacking him for some other reason that they had a beef with him because they were there were four guys after two of them left to state and appeared to talk to him and then gave him his backpack back from the ground and then later that very shortly later there was another assault of mr mora laryea where there was no robbery it wasn't like they were committing robberies or isn't coun the difference between the two offenses very different sentencing guidelines yes it's six to twelve for assault three which the court found and it's twenty four to thirty with a kept us a statutory cap of twenty four for the robbery to twenty four to twenty four exactly what she could have without the hearsay exactly what she could have to impose a guideline sentence exactly stayed within the guidelines she also could no i don't that we dispute that that is clear from the video the video shows one of the assailants doing something with his hands when when mr gonzalez was on the ground he could have been taking something he  or he could have been hitting mr gonzales or he could have been picking something up that he dropped we simply don't know it's not clear enough but that's why the court had to rely on the hearsay statements if the court could have said the same as she do with the identification issue i rely totally on the video the court would have done that because this hearsay issue was disputed the court had to rely on the hearsay statements to find a robbery if you just look at that video and put those hearsay statements completely out of your mind you can't tell what's going on in fact some of the circumstances suggest that it's it's really a kind of a dispute that they're having rather than a robbery the fact that they hung or two people hung around later talked to the victim picked up his backpack gave it back to him we really can't tell what's going on here seems to target just taking things out of his bag while the court did but that was because the court the courts finding was bolstered by the hearsay the court had the so it looks like from from its reliance on both that it needed both and that it would not have because if it had relied only on the video it probably would have said so just as it did with respect to the identification of mr guerrero the video doesn't show anything being taken from the bag it shows the bag it one frame and then another frame being given back right doesn't show anything being taken out it doesn't exactly it doesn't the only the only part of t say i watch both videos right but but still doesn't show anything it doesn't show the bag being being used the rock no it doesn't the government i think believe the government is relying on the the part of the video where one of the assailants not mr guerrero is doing something like this with his hands but we don't know what he's doing and less we already have in our mind that items were taken without that without that hearsay you  can't tell just exactly what's going on from the video thank you you have reserved two minutes for about oh and here from the government  this law was set up very clearly in the government's submission pope hearing submission and the court made a finding that the that essentially that evidence was reliable and it was corroborated based on what the court saw in the video i saw the same video since it was supplied and if the court said it saw the items being taken from the bag the quarter's wrong because i watched the video and did not see the did i make a mistake i mean the court said specifically when when asked and this is on appendix fifty defense counsel stated at no point is it clear on the video that any a items are actually taken the court responded on the contrary it is quite clear that items are taking it is quite clear from watching the video your client may not have received the items in hand but he was working with two other people he had a crew she also states at appendix fifty seven through fifty eight that they grabbed they took items out of it it was evident from the video video that is what she said that is the finding of the court with all due respect to the district court saying it doesn't make it so bag away from right and right and then you see it coming back later on but are you telling me that the video shows items being taken from the bag i mean there are people who say that i would set the district court made it very clear fine i know what the district court said but you've seen the video too did you see i have much meaning taken from the back you can certainly see rummaging around yes right now did you see items being taken from the back i think the there is a consistent finding with the court's finding that that is what occurred just because the court made that finding doesn't make it true for it's not on the video even if there weren't items taken from the bag taking the back itself is consistent with the robbery difficult all she had to do was say for good cause because the video is fuzzy or the video doesn't pick up every last moment of this encounter i find good cause to rely on the record finding lead counsel this is yes or no was there are finding they that good cause required the acceptance of the hearsay what i would say is that while that explicit balancing test analysis was not in the record the record as a whole supports good cause and i would say even if talking about the record as a whole what's in the record of the hall that we have been discussing here you can't just say the record as a whole we talked about the film which does not show items being taken from the bag i watched it very closely because i wanted list i want to make sure that the judges find it much more correct that's my job but i would say is even if the bag was given back the video clearly shows the bag being taken and that that coupled with the other evidence that she relied on from the video where they were kicking me or approaching him with a cane there beating him it was evident and she found that the items were not taken voluntarily is an easy thing to do and it wasn't and isn't that correct again i think that what she said is that her convictions this is not in the record as to why we didn't call the victim to read the justification for not providing the victim not in the record that said there were representations from defense counsel that they were not going to contest the evidence and so based on that we provided the officer and not the victim but again what i would say is that the court made very clear that the convictions and this is from appendix sixty convictions rely on my observation without the need from reinforcement from anything from the victims who are very clear that she was basing that she was not relying on the hearsay that she was really on what she saw from the videos ok well then she  things that i am good conscience did not say well she sought the taking of the bag and she saw the taking of the bag by force and that alone then with giving work of the bag is in the film is not in the last few fr even if you're taking back the back it's still a taking it's still a forcible taking of property and again they did this by force so i think if there was any error or the error here was plainly harmless i would also note that that the evidence again was extremely reliable given that it was not just bolstered by the statement issued was bolstered by a lineup identification district court says the convictions rely on my observation and without the need of reinforcement from anything from the victims is that during the discussion of the assault  she also follow follow is that and that is relating to the identification but then she follows that her convictions plural rely on observation she's not talking about identification there she's talking about her conviction in a discussion of th or more is that correct counsel i mean you have read that and that's where it comes up corrupt it comes up in that discussion and at that point she's following up what she follows is saying the defendant is guilty of all four specifications she's at that point summing up the evidence to the piece where she mentions her convictions does not specify specifically the identification or the assault it's convictions plural without the need for reinforcement from anything government at this hearing excuse me you represent the government and i did so you know that even in a revocation hearing hearsay is allowed but a good cause has to be put on the record correct yes your honor we do it in our eyes of the judge of that it was in the government's submission which is in the record we cited the law and we cited why the evidence here the hearsay evidence here was highly reliable because it was supported by the video it was supported by the lineup that was uncontested it was supported by the officers observations of the victim it was supported by also the office detailed statements that the officer received from the victim so all of those unless the court has any other questions i have nothing further thank you i first like to respond to this first i've heard of it agreement that the that the hearing would not be contested ok that is belied by the record perhaps and i know nothing about it because i wasn't the learner below i've never heard anything about an agreement perhaps that was in agreement that the video would not be contested but the hearsay was certainly contested there were two sessions of this via us are the first was the hearing with the live witness the police officer and the hearsay and it was objected to it was physically objected to at the hearing before the next one which was on for findings the court the defense counsel specifically wrote a letter contesting the evidence and specifically contesting the hearsay based on no showing of good cause the government for meat reasons there remain mysterious offered no reason still offers no reason here the kinds of reasons that qualify as good cause or in the cases a domestic domestic abuse victim who decides not to testify  and it's not it's not so easy you can't just come up with anything there has to be a real reason second on the government's argument that somehow the discussion that appendix sixty which is clearly about the assault specifications starts on fifty nine the judge has already found the robbery and a fifty seven start of bottom of fifty nine specifications four and five and six i believe relate to the second incident talking about the second incident has already talked about the first incident and then it gets to gets to the issue of mr loran did not identify mr guerrero in the lineup that's the issue that's being discussed as i said after my first viewing there is no question in my mind that the person on these videotapes with mr guerrero absolutely no question at all this is all about the identity of mr guerrero and the fact that she used the word convictions there were two assault convictions there were two assault convictions one against mr guerrero and want to get to mr l so it's clear that she's done with the robbery and she's talking about the salt she's not summing up she's not saying ok as with respect to everyone including the robbery she does not say that and that could have been said she didn't say that she was in fact explicitly relied on the hearsay