violation but unless there are questions to begin a soft on that topic this morning i'd like to start with regard to the appropriateness of the curative instruction in this case with regard to the spirit of instruction that the district you meant to establish that the statements were testimonial and i wish you'd spend some time on that question yes your honor and i'm and happy to do so and and the district court did find and did state that the arguments for a testimonial statement is whether an objective witness would believe reasonable that the statements would be used in a later prosecution under hammond davis bryant and in this case similar to for example the circumstances amman these statements were made to responding law enforcement officers the parties mister graham and miss moore had been separated in sac miss moore had been restrained for the majority of the statements and as even an officer wass the government's own written notice testified to the office the statements were made to the officers and about mister graham's using the pronoun c to refer so there was no honester stevenson why would one or under the circumstances community's statements as designed for use at trial rather than designed for use by the police on the scene with regard to whether it was for use of the officers at the scene or for later prosecution those were statements made to law enforcement officers in the government's recent indicates that the purpose or perhaps the subjective purpose of miss moore was to essentially get back as mister graham's but the way in which to get back at mr graham was to have him arrested and prosecuted zero dollars forty cents they were allegations of criminal conduct on behalf of mister graham major to law enforcement officers and a reasonably objective witness would believe that those statements could end in sight would be used for prosecution at a later crime they were not relating to the specific  specifically with regard to the instruction of in this case and i have eleven more question before you get to the instruction was a proper hearsay objection raised at trial i notice you didn't argue the hearsay rule in your opening brief you reserve that to your reply brief so i'm inclined to think that's too late anyway but i wonder whether a hearsay objection was made at trial at all yes your honor to it defense council did as a part of its confrontation clause objection did note that it was both a confrontation clause violation because the statements were testimonials and miss moore was not being called but also indicated  peterson said on the record that the hearsay that the very brief here's a objection was made at the wrong time and too late and i looked in your appellate briefs for any argument court did indicate that they were here say it was it the objections especially with regard to the confrontation clause were made after the presentation of evidence in court because the government at all times indicated or at least not indicated to the opposite that mister moore was going to be called to testify going in so far as to obtain immunity fairness counsel counsel can i ask mine let me ask my question again judge peterson thought the hearsay objection was made you know adequately and too late the question i asked was whether your briefs in the court of appeals took issue with that conclusion i looked through your briefs for that purpose and didn't find anything taking issue with that conclusion my question is did i miss something in your  briefs your honor we did not i believe specifically or i cannot at this moment and i will be happy to speak differently on republic so i am able to find it i do not recall specifically referring to that point we did know that testimonial statements did need to be for the truth of the matter asserted so we did speak to the government's discussion of the alleged contacts exception to a hearsay arguments we did argue discuss those but again the finding that we are addressing here is that the  found that the statements were confrontation or complication violations attempted to remedy with an instruction which we would argue and argued in our priest is inappropriate in general given the context of the statements and the relationship of the parties but even if that were appropriate or could have been sure to via instruction as the problems with this instruction are numerous both sacked at the instruction but significantly delayed about a day or so into the trial during which other alleged victims testified it's didn't refer to the statements or the repetitive repeated statements from officer wass on the stand and also was not reiterated at the conclusion of the evidence  in the other jury instructions because the district court did acknowledge a confrontation possible violation did indicate that it was hearsay statements did attempt to cure or what would appear to be an improper in something that could not be cured erted and the primary purpose of her statements was not to create a record for a trial but the court need not even raised this issue because any error was harmless beyond a reasonable doubt st the indisputably admissible evidence was overwhelming in this case scenario harwell testified about how graham prostituted her for a year and a half and took all of her money she testified about the way he manipulated her promising her a stable place to live the ability to go to school about how every time she left him he found her and manipulated her into coming back he tracked her with her phone about how he choked her and patients more on a regular basis and when he found out that she intended to escape he choked her into a cone consciousness crystal just koski testified that he used the fact that she was a mother to manipulate her that he posted her on the back page before she even agreed to engage in commercial sex and that once when she didn't want to go on a date mister graham shoved her against a wall so hard that she hit her head on a television set she went on the date out of fear chelsea winner testified that graham also used her children against her that he plied her with drugs to keep her working and that she saw the kind of things that he did to patients and sin their area she knew what could happen if she told him no simply is the link to testify they grant approached her and he knew her to be a prostitute and told her that he wanted her to work for him and when she refused patients more assaulted her this evidence overwhelms anything ms moore said in that video and if that weren't enough the court also gave a curative instruction that told the jury to completely disregard everything that ms moore said in the video this court's precedent is clear that there is a strong presumption that the jury will follow a curative instruction unless there is an overwhelming probability that the jury will be unable to follow it and a strong likelihood that that f the facts of the evidence would be devastating to the fence now returning it to the  point ms moore statements were not testimonial because they were not offered for the truth of the matter asserted and because their primary purpose was not to create a record for a trial on the st point most of her statements had nothing to do with the allegations that the government was trying to prove here the government was not trying to prove that mister grant had kidnapped anyone or had taken anyone from new york in fact the government made a point in closing to say that there was no kidnapping here nor was the government trying to prove that mister green had kept his more herself asked for her statement that mister graham was prostituting women this was never contested he admitted it mister grant himself testified that he recruited women he posted them on that page he drove them to dates he solicited customers and he kept a share of their earnings that your honour's is prostituting women he admitted that these statements were useful for one thing only to show why cindy area believed that she was stuck that the police were not going to help her indeed the government question scenario on her direct not about the statements themselves but about their effect on her government never actually asked her about the statements themselves because again the purpose of the government was to get out her state of mind the content of the statements was not important but it is a fair inference to make because we heard on the video when the video was being taken up stairs and the door was open incendiary it was in the room there video itself that the body can capture what the state what statements nist were saying so it's a fair inference that cindy area that did hear them but there was no one hundred percent clear from the record that she heard the specific statements although again it is a fair inference for the jury to make that she did hear them well there and then i'm sorry your honor there are any argument that in fact that she must have heard because more i was screaming her head off or something and it didn't seem that you were actually using that theory here in any way you were on a leap or not necessarily arguing that the government was using the statement themselves we were merely arguing that the the hollering yelling and the fact scenario did testify that she saw ms moore carted away by the police officer is after you know it had been mister graham that beat her up it had been clear that he had hit her so the effect on her the question for the government was always the effect on cindy area of staying that ms moore was the one carted away by police officers not mister graham so we only got this stand there for the state of mind not testimonial of the government was not introducing them for the truth of the matter asserted because again the government was never trying to prove that anyone had been kidnapped that anyone had been taken from new york and then the general statements that he was prostituting women mister grant himself testified that he was prostituting women so these statements were simply not introduced for the truth of the matter asserted in any case this was an effective curative instruction and all that aside your honor we have four incredibly compelling witnesses who testified to the elements of this crime but all i did was to say this judge would i mean you know i watched the videos and it's a fraught situation while this is going on ms moore's thrashing around and screaming but she she wants to set the police on on on mister graham she would like to see him tried and convicted she thinks it's unfair or the she's the one who's being picked on by the police so from that point of view why weren't  they in for the truth in appropriately well there weren't for the truth judge would because they were simply did not go to any of the allegations that the government was making in that case again the government was not proving if you look at the statements themselves the content of the statements what she said was he took me from new york he kidnapped me from new york fled and kidnapped means coersion force fraud i mean i guess his theory was as long as i was doing all this prostitution work with consensual people everything was fine or at least it doesn't fall within this charge she's showing coercion and forces and your honor this is not a kidnapping case and the government was never trying to prove kidnapping the testimony from standing area that the government brought out from standing area was that she met him at a mall kiosk and she went very willingly with him the government brought out from all that and that's how they and none of them were involved kidnapping and indeed the government said it's you're answering this more narrowly than i'm thinking of it as the evidence that she's screaming out or those statements that she's screaming out would go to the existence of force or  actual quote it's your honor they would if the government had been trying to prove that but the government said in its closing statement there was no kidnapping here the women came and went as they wanted to the government specifically said this is not a kidnapping case there was no kidnapping so therefore a testimonial statement must go to what the church what the government is trying to prove and these statements simply do not meet the bill and i understand what you're saying about kidnapping but you're certainly not saying the government c cedes that it's failed to prove trafficking by force fraud or coercion those are the charges that's correct your honor and of the testimony from the women themselves from the women who testified was st hand knowledge they prove those  they proved how every time they got away syria testifies to every time she got away he found her you tracked her using her cell phone he manipulated her into coming that the government never was trying to prove that he  will she was not allowed to go anywhere or anything like that this was about fraud and that he promised her schooling a place to live of and every time she left he went and found her he harassed her grandmother he harassed her father he brought her back by means of coercion and that is not kidnapping that is not forcing her into a car it is coercion to manipulate someone psychologically into coming back he did the same thing with crystal  you need to do this for your children if you were a good mother you would do that he did that through drugs with kelsey lanner he would her give her cocaine unless she worked he told her you need this you need to do this for your children you need to do this for drugs that is coercion and that is frau statements an officer was was essentially asked to repeat the statements to clarify that there was no orienting questions no questions that demonstrated context or the like and this is similar to cases walker monts has where the government has offered it to expand context as an exception to the hearsay rule also with regard to the testimonial nature of the statements it's important to note as i believe judge would indicated the parties were separated the statements were made to law enforcement officers and again with the presumptive or at least reasonably believed purpose to have mister graham arrested and prosecuted for a criminal offense but most importantly with regard to that so the burden the state's burden or the government's burden to prove beyond a reasonable doubt that this was harmless and as the government noted it indicated well at the end after the statements after the testimony of other people  after the instruction that this wasn't a kidnapping case but what was more important is that they spent over a page of transcripts reminding the jury about the videos going into great detail reminding them about the disturbance that miss moore created reminding them and bringing them back to the videos after they had been instructed to disregard the statements from them and between the instruction not speaking to miss watterson the officer wasis statements parroting or repeating what miss moore said the fact that the government drew attention to the videos again at the conclusion of trial we would ask that the court vacate mister grant's conviction and bring man for a new trial thank you you