the court's permission i'd like to reserve three minutes for rebuttal sure given that the government hasn't denied that the tray summary exhibit twenty is testimonial such that crawford melendez diaz apply i intend to proceed directly to the primary issue before this court today which is whether the government as the beneficiary of the constitutional heir can prove or commute its burden to prove beyond a reasonable doubt that the guilty verdict was surely unattributable to the air and there were negatives i could say that is there are reasonable probability and they prove that the air that the erroneously emitted evidence didn't contribute to the air or to the guilty verdict excuse me now where all the other evidence that was put on by the government to establish the interstate commerce element was credibly countered by defense counsel and so was not overwhelming the government can't meet its burden of proving that the constitutional error was harmless beyond a reasonable doubt the only piece of evidence that was not credibly countered by defense counsel was the trace summary which on its face conclusively shows or purports to show that the gun traveled into pennsylvania from ohio and therefore sorry what was how was the fact that a gun in the state's own it credibly through the expert the government's own expert testified that you can't look out what's the fact that connecticut has stamped on the gun as evidence that it traveled in interstate commerce that is only the corporate headquarters the you now the defense position all along was the theory was to attack the government experts conclusion that the mark was authentic and the way he did that was we have agent will gross testifies without having first physically examined the firearm but that the gun may have traveled in interstate commerce or could have been manufactured in connecticut or new hampshire an we have the expert testimony he himself says that i can't assume from looking at the markings alone that this gun was made in connecticut because that just means corporate headquarters and then he goes on to say the the fact he explains that any person in pennsylvania who has the right tools could counterfeit this gun in much the same way that you know how i would somebody want to do that is that's my my question i mean th i'm not sure that the why matters but to answer your question and that is that's the make sense defense counsel posited that perhaps someone was trying to benefit from the name recognition making generic generic gun and then what he did he created a question in the jury's mind that it was an authentic gun and then what he did was this is the theory of the defense he asks he says that we know my last german read your is required to keep a record of every gun manufacturers and we know that the federal government is authorized by law to go to the manufacture and get a copy of whatever record exists showing that this gun was manufactured there and then what defense counsel does is ask the jury to infer make an adverse inference from the absence of that readily available evidence that again he asked it's like a missing witness instruction he asked them to infer that in favor of the defense defense's theory and so it's in this way that the evidence on the interstate commerce element for the gun is credibly countered and when i say credibly counter i'm not suggesting that the evidence is insufficient to prove the interstate commerce element which is what your honor is i think getting at to say that because the evidence as the law fully admitted evidence is otherwise fission to support the finding the interstate element interstate commerce element would be to miss apply the harmless error of the chapman standard chapman doesn't is the other is the properly admitted evidence otherwise fission it says can the government's prove beyond a reasonable doubt that the guilty verdict was surely not attributable to the trace report and here i submit that the answer to that question has to be no when we have the united states attorney during closing asking the jury to consider government exhibit twenty and she specifically says in her closing the case agent testified when he ran a trace he recovered the firearm he received info that it was manufactured in connecticut wholesaler was in ohio and it was eventually sold in pennsylvania this info is in government exhibit twenty that's how the gun ended up in pennsylvania so when the united states attorney invites the jury to rely on a piece of evidence that's admitted in violation of the confrontation clause the government would be unable to meet  appeal it was disclosed in discovery but it wasn't admitted at trial it's the subject of government's motion to supplement the record on appeal but  defense is there's this missing evidence that we're calling into question the authenticity of the mark to prove the interstate commerce elements shows it's actually no it says it's a bear and it says it was sold in pennsylvania and then again in pennsylvania that's all that it says and for place of manufacture it says only the united states that does not say no other no other information but i tracing report violates the confrontation clause it's wholly irrelevant what was in the other document right but yes before the jury because the jury was exposed to the summary exactly ok the end of a important part about the trace summary is that it's not cumulative again that's the information that shows the crossing of the state lines and the jury can rely on that information and that information alone to reach its guilty verdict and is invited again to do so by the government  to brought that in was agent well goes and again he also in the next breath and i that anyone in pennsylvania having the right tools could duplicate the markings that we see here on this router he also said but the jury would have had to sort of  not relevant to that inquiry because if the jury rely on it if there's a reason the proper reasonable probability that the trees summary which violated the confrontation cause contributed to the verdict that's the burden that mr roberts needs to meet to get a new trial did you i would ask without belaboring the point there's a second issue with the rule sixteen issue it's very secondary but it would go to the remedy that discovery of the discovery issue it goes to the evidence if i didn't know that we have well i haven't raised a sufficiency claim if i were raising a sufficiency claim the answer is now but i have raised a confrontational sixth amendment violation which is subject to harmless and the remedy would be remain for a new trial and you can consider the rule sixteen discovery violation to remember with instructions the government not be permitted to use the trace summary of a new trial they didn't and i'm suggesting it would be within this court's authority to issue that as a sanction just to prevent the government the sanction th you could be right i'm suggesting you have the authority and i'm also suggesting that i remember want to be granted that the trial attorneys would probably have the opportunity to make these arguments  may please the court donovan koch i say you i say on behalf of the united states you let me ask you let me start right off with a question i'm going to read you what i understand to be this is a quote from our cases well put a question is all right that we're here to answer the question is not whether in a trial that occurred without ever a guilty verdict would surely have been rendered but rather whether the guilty verdict actually rendered in this trial was surely an attributable to the error and i can demonstrate that ok well help me because i  national training center that was their job they traced this right if i had been on that jury i would have never a value weighted in the of those arguments about well goes i asked him only because he summary the trace summary has on that page exactly to limbaugh's show of interstate travel it has near the top of the page the fact that the gun was a ruger and therefore it made new hampshire connecticut and it has a little lower down the fact that the gun went from answer is no and the reason because it page one fourteen in one fifteen in the appellate record to kind of what said that portion of the tray summary that says the manufacture information came from me and where i got it was by looking at the ruger so if you're the jury and you don't believe this is a real ruger then that portion of the trace summary is totally worthless to you ok now let's look a little farther down the trace summary also says the gun went from ohio to pennsylvania right why couldn't the jury convict on that alone because bertha by witnesses testified on cross examination pages one seventeen one forty and one forty three that that trace some of that trace evidence is obtained from the national tracing center who gets it from the manufacturer rely on the tray summary alone that to the extent let's suppose the jury it for the jury to give the trey summary statement that this is a ruger any credence it already had to a believed our testimony from our witnesses that it was a router and the instant it does that the trace summaries notation that this is a ruger becomes cumulative and therefore harmless under him that is ok when you say to mine i realize i might not be your money i wouldn't have any trouble believing it was  outfit and of course it would be hearsay evidence if it were if the gun were offered for the purpose of showing that it was made in connecticut would be hearsay evidence but you don't get to all of this evidence about you're if you're a juror and you have a concession that you believe it's a river and you've got exhibits one of the this is the  national training center traced it and it came from either connecticut it came from connecticut i guess it was a connecticut or new hampshire forget new hampshire ok why would you go any further i mean why would you will go said this is a rumor absolute jury sitting there and saying ok i believe it's ruger now somehow you said you got a conclusion there that what the trade that that that secondary if you look at one of those is testimony that he spends a lot of time saying i have twenty one years of experience i've looked at thousands of guns i look at this gun and from everything about it it's a ruger i think he mentions a trace ace  so you all wind up you always wind up back at the same place if you don't believe this is a ruger you can't believe the trace summary and the trace summary alone won't tell you that if you disbelieve everything else we said the trace summary isn't up that's the problem and  is inherently paula to a quantitative so we examine how much evidence we had so let's look at you know mark well those testifies she looked at the gun at trial page one twenty five then he testifies of pages one twenty seven one twenty eight this situation you have an expert saying a gun is made out of state you have but you're going to put in front of the jury itself with clear markings of out of state commercial manufacture and then you have one of the witnesses saying well yes it's conceivably possible someone could could counterfeit a gun in state but not yet the eighth circuit there said confrontation clause violation harmless because the markings on the gun plus the expert testimony and notwithstanding his concession about possibilities provided overwhelming evidence that's right out of horsemen and that's what we offered here both the gun and the expert so i would submit to the court that you know that evidence was i'm not merely there to lose i don't i just found it you know researching for this yeah i'm sorry and i'm happy to you know we can absolutely  time the trial rolls around the gun has been thrown away so the only testimony is somebody says yeah this was a ruger by coincidence it was a ruger in that case and the first circuit grand dani sufficiency review said the fact that their witness testified that this is a rumor created an overwhelming probability that's the phrase it uses over run probability that it was made outside of maine now here we have more than that we have the gun itself we have the experts testimony that is ninety nine point nine percent certain that this was manufactured in northern new hampshire connecticut it's true you couldn't say which state but we know neither of those states lies within the boundaries of pennsylvania so that's all kind of immaterial so the ban i think is where we office absolutely it was absolutely mistake not to put into evidence or not to at least you know deliberate before trial and you know by way of explanation or not justification i'm told that the agent had it and only popped it out on the morning  that i've said in my motion to supplement you know the detailed trace that we did turn over showed this is a ruger is soon as you see that mr roberts is counsel it's game over for you unless you get an expert or somebody in there to this to say why  pennsylvania never have been and there seems to be i don't think there's any dispute about that that's why there's so much noise in the briefs about was this or wasn't a real burger the fact of the matter is you know the jury was instructed to page one ninety six with the typical reasonable doubt  nstruction and it said the government has to prove beyond a reasonable doubt not beyond all possible doubt not to mathematical certainty and i would submit to the court that we came pretty darn close ninety nine point nine percent is as close as we get on this side of the veil i think to mathematical certainty and you know i think you know it's true we had a witness concede in all candor that it's theoretically possible to counterfeit handguns within the state yeah kind of like like it was a counterfeit something or  other but it says a lot i mean that our agent twenty one years an industry says never seen a counterfeit handgun i mean i think that speaks volumes about how prevalent this phenomenon is at least in this industry the agent had also never seen a rigger by the way he said he'd never seen a counterfeit but he never looked for a counterfeit he just assumed from the markings and when he said ninety nine percent he said when i'm ninety nine point nine percent he said he was basing it my he was a he was basing it on the markings as orally conveyed to him not on a physical examination of the gun and he was basing it on the blue book and the gun traders guide he said he if he had known this was going to be an issue he would never lives soley on the blue traders guide but to respond to the initial argument by mr coke as you don't necessarily have to believe that it's a ruger before you can ever get to the trace summary defense counsel made a credible he presented a credible challenge to the authenticity of the river that's all that he had to do for purposes of the harmless error analysis the credible trial has only just because examination there was nothing else it was  e counterfeit issue and the ability and ease of manufacturing the the zero point one percent chance no no after immediately after he said ninety nine point nine percent chance he then said but of course anybody in pennsylvania i mean that was the very next day but there's no evidence in the record of any kind of that's why you know that's why he that's what i do you say credible evidence of counterfeiting credible evidence counterfeiting would be eyewitness who says yes i've seen a counterfeit go perhaps i misspoke defense counsel credibly counter evidence that the government put on that the gun traveled in interstate commerce because he attacked the basis for the experts opinions and then the only evidence the jury could have believed that the jury could have said oh you know who knows maybe maybe it's true maybe this gun was made in pennsylvania  then they get to the tri summary and it unequivocally says ohio to pennsylvania they don't have to prove a cross twice they have to prove a quest once the jury might have thought that one time was the ohio into pennsylvania and the important part remember is this is a general verdict there is no special iraq authorities the jury was told you can base it on the gun or on the ammunition we have no way of knowing what they believed we have no way of knowing what they base their guilty verdict on we do know that the usa the trial usa argued specifically argued to the jury that doesn't matter whether it was once or was ten times she specifically argued to the jury you can base your verdict on exhibit twenty and find that the gu traveled in interstate commerce and then she also directly challenged defense counsel all of his arguments all of his cross examination of agent you can know what she directly challenge him on those arguments and she the underlying purpose of that was to tell the jury maybe we didn't bring in the right witness for this but it doesn't matter what else would have shown we didn't need to so she underscores the idea that there was no need to confront this witness and i submit that there was a because her argument says look at the gun but the gun can't answer the question when the expert specifically says the gun doesn't answer the question the fact that it's mark ruger doesn't mean that it was manufactured in either connecticut or in new hampshire the only evidence is that those guns are manufactured in connecticut or you have a hampshire there's no evidence that they're ever manufactured someplace else but the evidence came out that anyone in pennsylvania having the right tools could counterfeit this these markings just like they counterfeit counsel he answers that pretty pretty well i think when he says that if all you do is get an oral representation from the case agent this guns mark gruber ruger and here's the number and then you turn around and you take your book off your shelf and you say this was manufactur connecticut how will you ever find a counterfeit you never will because you're not looking and it's also significant that he says he's never seen this model of rigor period thank you thank you very much