the next case on the calendar is united states  and without a contrary on bhangra supreme court determination this panel is bound by that determination and with respect to our second point on appeal the exculpatory lab report which indicated that gunshot residue had not been found on the defendant's jacket was improperly precluded by the district court all of the requirements for admissibility under rule eight zero three section eight three of the federal rules of evidence had been satisfied and so it was the government's burden to prove that the findings of that report resummon how untrustworthy but all the government's arguments which the district court relied on related to the evidentiary weight the probative value of this report and not to its trustworthiness or its admissibility trustworthiness is affected is the government's burden to show that this was not trustworthy and in some way not it admissible for that reason that is the government's were under section eight of the wrecked once all the requirements for admissibility been satisfied and this was a record a statement of a public office it was offered by a defendant in a criminal trial against the government and it set forth factual findings of a lawfully authorized investigation the availability of the deck the rant does not matter under these exceptions to the hearsay rule  for three analysis i don't believe the court made a rule for three that the government made a rule for three objection in their written submission but i don't believe that the district court of the district yes but i don't believe the district court this was not a written opinion this was colloquy before the trial started you offered the evidence and the government said well there are these flaws because they didn't use the up to date equipment and gunshot residue frequently usually is not found on the shooter and you shouldn't that this evidence is not really trustworthy and raised for a three argument and the court rejected the evidence but rejected the evidence as untrustworthy and the court also said that the witness should have been called in to testify as an expert the district court said that it was somehow a rule seven o two my question is what evidence is there that the microscope as she him was in fact the high power was the industry standard it is whose burden is it to show i know there was  burden of showing what the industry standard is well that would be the government's burden and it would be their burden at trial no it's doesn't because it's something that affects the probative value of the evidentiary weight not the trustworthiness of no i think  k and some of us agree with you that it's a matter of weight i think and whether biz is trust were the evidence goes to whether this was a microscope that was good at finding or not if this was not the right microscope this goes to admissibility to trustworthiness not to wait but my question is did the government present if you say to their burden any evidence that this was not a trustworthy microscope because of her microscopes or you used an i'm having trouble looking at this record which really would goes to be other side finding  instead everybody else with that what was done in busier yet was using a more high powered microscope back what would have been the government's burden if that issue did go to the miss ability it was the government's burden to prove it all they did was present an argument to the district court based on their say so about an interview they allegedly had with this n y p d criminalist that was the only evidence that was before the district court with those evidence that's not sufficient evidence the government to meet their burden assuming that that element itself would have been relevant to the admissibility trustworthiness proper anything in response no because in response to them to the microscope or issues or the separately you know it is the industry standard your honor no your honor there was there was no there was no evidence either way besides the government's you know recitation of this conversation they say that they had with the criminalist who prepared the report but trustworthiness goes to issues such as whether the person who prepared t report has some sort of bias or motive in the case or if the report only contains preliminary findings factual findings can include the results of scientific reports like this one this court held that in the old case which the government cites to in their brief but they don't distinguish that case from from the facts here at all let's see if we agree with you let's say we agree with you and say it seems that miscible under the exception to the hearsay rule because because the microscope was there's no showing here that the microscope wasn't working properly or that the examiner had a bias and it did what it did within the confines of what it did that still leaves a prop a problem if we accept the proper of the government is valid rule for a three so even if we accept that it should have come in to the hearsay rule why wasn't it properly excluded under rule for a three and so any determination by the district court is yeah maybe they cited the wrong evidence rule but it's it's harmless ultimately the determination was correct there wasn't sufficient evidence that the use of the microscope that was used in this case would in any other way be unreliable the fact that there is a new state of the art microscope that some some the two is that yes one of the court must do a four or three balance after determining that it's whether or not it is admissible under the hearsay exception the district court did not do that here the district court ruled that it was inadmissible that it was hearsay and that the analyst should have been brought in to  ially cross examine the findings your argument is that it could have been excluded under four o three but the court didn't go to bat because they were on a is i'm just trying to get your court the court to not make a rule for three analysis but you know for all three does still apply to all pieces of evidence such as this one and that this one this item of exculpatory evidence regarding a scientific test there's no evidence that it's actually untrustworthy or that the criminalist had any sort of bias is relevant and any confusion or whatever that the government might raise it is not substantially does not substantially outweigh that highly probative value especially in light of the fact that there was other scientific evidence which tended to exculpate the defendant the lack of any d n a evidence or the lack of any fingerprint evidence on the gun and so given all of that and given the fact that the jurors specifically asked the one subset of note they sent out during their deliberations was to ask whether gunshot residue tests were performed i think we can't say that this was a harmless error by any means i see my time is up your honour's if there's no further questions please the court shall land kemal on behalf of the united states and i also represented the united states before the district court briefly as the court is aware there are three issues here only two of which really remain live after the the the comments by account and so i will skip over frankly the johnson's duckie issue and merely note that stuckey for close of the grounds for appeal it i s the binding law of the circuit at the moment i would also add that the the appellant has alleged that the government some ation was in some way improper the government here fairly commented on the evidence by citing to witness testimony and by pointing out how that testimony was corroborated by other evidence and just committed no error much less plain error by permitting these remarks and then finally where i anticipate much of our time together will be spent  the district court was well within its discretion when it ruled that a misleading gunshot residue report could not be introduced as an exception to the hearsay rule under eight zero three eight the record reflects that the circumstances that led to the report's findings were patently unreliable and what what evidence do you have for vet i mean leave aside the question of whether bin a formal free finding was made so i understand i understand your question judge how bracy the issue here is that a two three eight is not clear about how challenges to we are of it it's a burden of the government agreed to show that something is not reliable the person who did the test meets all the qualifications agreed and did it test that on its face would to speak to it a microscope and so on now the government has a perfect right to come in with evidence that says the microscope was broken it's a wrong microscope here are reasons why it's under reliable but the record the record reflects what i would characterize as an attorney proffered by the government because i was the prosecuting attorney below i can add supplement that record which  right that no to drowning but what i can saying which is reflected in the record here is that defense counsel had contacted and debriefed m martinez who's the author of her court had prepared to call ms martinez to testify but that doesn't go to the question of whether this is a two or three evidence which a government has a burden to show is not reliable and the fact that miss murkiness might comber might not come doesn't go to that issue it is and i just like you to help me of say it did a for all three balance which is a different issue so i understand you to be asking to separate question judge as well try to keep them separate the first is that the government attempted to introduce the evidence beyond simply an attorney proffer by inviting or offering to war dear ms martinez before the court ruled and that is in the record at appendix sixty two and so there was an attempt by the government here to to that's fine to put forward that evidence and i would add your honor if i said they were going to call ms martinez and we're going to reduce the record that that's correct and when did this come up at trial when did that change and how did it change help me understand the record so the record here was that the trial the the motion was made to admit the martinez report if i may call it that basically on the eve of trial the day before it was briefed the day before judge maria roe ruled before the  first witness was called at that point i believe it was i believe it was october twentieth and at that point notice was given to the government that the defense intended to call miss martinez the government in fact assisted the defense in ensuring that they could get prompt access to her and prepare her testimony and then on the twenty fourth she the government anticipated that she would testify because october twenty fourth was the day that the defense's case was opened she appeared in court that day and she was not call in the record reflects later on that  defense counsel below in fact stated that it believed it did not need to calm his martino's but couldn't for government at that point have called mr martinez to government then with respect to the source with respect to this appeal and i believe this is the second half of judge calibers is question about the four or three analysis here judge more clearly in gauged in a four zero three balancing exercise even if you did not use the magic words of four of three and i believe his his his precise words were in the joint appendix at seventy two the report is not reliable by itself and here here the issue it is characterized as being one of weight versus the admissibility by the appellant the did the true issue here however is that this report which would ordinarily be considered a you know a and expert reporting scientific report here it was the methodology that was used look look i have no doubt that if  you versus prejudicial because weight goes to prohibit it so it would be perfectly fine and if we can read the district judges having done that then for government is home free the question is can we read the district court as having done that when be district court if the district court or un bill said this is not admissible a all because and that was a roni yes because then how can it have bells so that's my my question is to what the district court did it because to say well i think it's inadmissible but i'll treat the the when the court when judge morrow engaged in that balancing exercise contemplated by four o three he came out and his and his precise words were the report is not reliable by itself is not prohibitive by itself and notably here in the light of in light of the weaknesses of the report i don't want to keep keep you but my problem is of a very fact that the court used the word reliable which goes to admissibility under age of three in the first place that that's for a very word that the government has to show and if it had you used different words it would be easier that's that's words maybe you know i may be putting too much weight but that's what's worrying me i see my red light is on u the court has any other questions the government's content to rest on them it's very briefly your honour's i think the record reflects that the district court did not make a determination under rule four three but if we were to assume just for the sake of argument here that the court did i think the court would been in error for the same reason that the court was in error under the rule of three analysis which is that the government simply did not present sufficient reason for the court to believe that the evidence was somehow prejudicial overwhelmingly prejudicial or cumulative or misleading to the jury in any way otherwise you could say the same thing about all sorts of scientific tests so maybe this d n a test is inadmissible under a rule for all three because there are issues of transference and things like that everything really give a great deal we give a great deal of leeway to courts whether we should or not i don't know but if you look at our precedence we give a great deal of leeway to courts making that we balance questions that do go to the weight of the evidence like the question of whether the firebrick was right all of those fing which are weight of the evidence are things that the court can take into account for the very correct but on the record that was before the court and in light of the fact that this was an excuse to tori scientific report on top of other until inculpatory scientific reports i think the court if it had made that determination on a rule for three it would have been a reversible error there no for the questions from the court is just to make sure and it would be reversible why because you thought the balance it could he was the balance was not within the permissible scope of balancing or that the district court couldn't make that determination based on an attorney proffer well for both of those reasons based based on everything that was before the court which was just that this attorney proffer about several issues which even if they were all proven to be true wouldn't have rendered the report so prejudicial or misleading that would overwhelm the plainly i think probative value of an ex called the tory scientific report and so it would have been if the court had made that determination a