the standard by which a seventh motion should be judged and it says that severance is warranted in one of two situations and that it would prejudice would result from the joint trial either by reason of compromising a civic trial right of one of the dependents or preventing the jury from making a reliable judgment as to guilt or innocence you concede that in addition to the fact that we review decisions relative to sever subject to abuse of discretion that it is demonstrably and historically unusual for this court did most course and i know too to find an abus discretion where severance has been denied i think in terms of quantity yes you're correct leads me then to my next question do we do we need to perhaps dig a little deeper  d develop a rule or some kind of exception if you will to abuse of discretion review of severance that takes into account where a privilege or in particular in this case a marital privileges or property i think i have two responses to that your honor i think the marital privilege situation does present somewhat of a heard there was a firm position taken as to the legal distinction between right and privilege which seems to me to have some real residen believe in this situation what the right is preferring to is if in a separate trial the defendant would have a right not a fundamental constitutional but a right to object to the admission of evidence or the evidence would be inadmissible such that it could be excludable by the defendant that is the right to which the all right so we are talking about the difference between a fundamental right in some more generic form of a right that derives from the in vocation or the the the the decision to invoke the privilege of evidential correct and that's again coming from severe on which the court spoke about your relevant evidence being admissible and that having a definite having a right to exclude irrelevant evidence that flows from the rules of evidence not necessarily from some constitutional privilege and i think in this case again once you look at it from that perspective essence of undue prejudice is something that is subject to weighing in consideration by a judge on the spot it is going to be a weighing process but i think in this particular case given the allegations of abuse of the direct threat issued by mr holton force m that this type of testimony and would have been in admissible and in fact you saw in this particular case the judge below actually held and put restrictions on this once ability to testify as to these very fact because they were so prejudicial so even in the context of a joint trial there were limitations placed upon the evidence and the testimony it was allowable i think in that particular circumstance you see quite clearly then in a separate trial over a hall both because of this balco privilege and also because of the four hundred three four one problem with relevance and prejudice this testimony would have been excluded by mr hall and the denial of his ability to object to that evidence the requirement that he accept that evidence just by virtue of the joint trial satisfies the but one circumstance that corkins a fear of denial was specific trial right at the defendant by virtue of being joined i think then you can also go into the second circumstance now the biosphere which is preventing the jury from making a reliable judgment of guilt or innocence and that really gets to the heart of the matter in terms of the lavatory nature of his poems testimony we've already gone through it a little bit so i won't bore the court with that testimony but miss blunt was quite clear she said he's told me that if i didn't make this call he was going to kill us now you can interpret he the pronouns in that sentence in any which way but as it was said in that particular time frame she was only referring to mr hall so the jury would have taken it that way necessarily she said later that it might be maybe even making your job more difficult by saying that the jury would have taken it i mean isn't  isn't it sufficient for your purposes to say that there's a good chance that the jury would have been ferd that he was he mr home you made exactly the next point i was going to make which is that's all you need to find out is a good chance substantive and coppa tory testimony that really satisfied the prosecution's burden i virtue of her testimony alone she testified that earle hall she had participated with her all on the phone call on behalf of top to williams she said that all hall had forced her to do so and she said that she could force on that phone recording the same voice that appeared on other recordings she testify further that era hall had exclude had use of her phone when ever he wanted and she said that that phone which was the one to use to call other employment agencies and calls that were not recorded he was using the pony at that time on those moments and she was not she testified further that he had access to accounts she did not and that she had no knowledge of the transfers but he would have been terms of the house basically he she established that girl hall was not only a participant in the crimes but was the architect the manager of them and really satisfied almost every aspect of the prosecution burden when in fact the prosecution's evidence was quite weak on these points the financial records to which the government showed only that funds some funds not all of them from the benefit application payments flowed into accounts transferred by or controlled by hall but they did not show that earl hall made those transfers or knew of the underlying criminal activity or was associated directly with it and the phone recordings should only that somebody had called in on those days and made inquiries regarding applications the only evidence that earl hall with participatory was the testimony of his former probation officer who had experience only in a limited capacity with this voice from years ago could not immediately identify when asked his voice only upon prodding by prosecutors and then after that even a trial the probation officer could not identify with certainty his voice on all of the recordings so you had all the prosecution's evidence showed wife compelling direct certain to the jury with allegations of abuse not only provided the evidence necessary to connect all the dots by bridger but really provided them with an invitation to convict mr all in light of the and please for your honors  seventy thousand one hundred eighty four dollars paid by pennsylvania and all in hawaii on six claims parks we forty four thousand dollars was wound up in the halls bank account most of that money was made through check pockets through smartphones other amounts parks me three thousand went into that account through it via direct deposits that's government's number ninety six you can find it in the dix two mr hall's appendix i should say and we know that that account at j p morgan chase bank account number eight two three nine in the hall was in fact an account issue on the severance issue is there programs to anyone and the government's position is there isn't if you remove a once testimony in its entirety from this record there is more than sufficient proof of mr hall's guilt on all of these charges we know it was earl hall the defendant's account and it wasn't some third public account controlled by a third party because you know what happened that money redundant testimony leon identified his voice in the shot to williams call in the background he also identified his voice in calls made by charles campbell the pennsylvania by samuel mr hall this was proof positive of mr hall's guilt and if when you gone never took the stand in the trial the end result would have been the same shock to williams aggravated i didn't have a conviction is there were three identifiers first name last name date of birth which identified a specific individual and that california that certified there's no reason to disturb those are committed identity theft convictions so so that i understand your position or or maybe this isn't your position but how i ask if you agree with this court could determine that the district court heard in not having severed these matters in the determination she made based on what she five you have to focus on is there prejudice to the spouse who wants to testify is there prejudice to her light to take the stand so you don't factor the marital privilege into the equation s isn't the same now you know i think it is i think it is included in your honor and here's why if the if the spouse who wants to testify really doesn't happen doesn't have it she isn't going to defense well i think i think the court did take it all into consideration and but the bottom line is when sean to when we need a blunt is going to told the court she was going to admit making this call and she knew determined that we need a blunt really had testimony offered that would have exonerated her she would protect her spousal privilege and would have ordered and would have border separate trial and that's the focus is she really offering up testimony that can exculpate her if she is but she's not going to force her into that decision to give up the privilege but in this case she found that her testimony didn't meet that threshold separate the reason stated in our brief and these these were the reasons that we set forth in our brief but i would agree with you that it would have been better had she written a full pinioned on that well had she developed the testimony she could have asked that ms bl i don't have a citation to the supporting brief thank your honour's the pressures but i think the prejudice is clear i mean as we discussed earlier the prejudice needs to be assessed based on what was admitted in this trial and what would not have been admissible in a separate problem mr hall and in that case it is essentially but even if it's certainly not overwhelming for the reasons i previously described you have financial records that show that some money went into his accounts that came from these benefit checks ok you have the test and you have the recorded phone conversations and you have testimony from a probation officer with limited experience in in his voice recognition who only testified that that limited experience about what on his voice on being able to have with his voice he only knew of a hall for a couple of years and only on a monthly basis and he came in after being asked by prosecutors to identify the voice being told that this is earl hall's voice on these recordings can you confirm that he did it i think in this circumstance there's no basis to doubt and i don't think anybody would help prop possibly the government that the jury was entitled to reject that evidence at the very least it wasn't overwhelming in the sense that we can say is in a court on a court of appeals level that there is no way on a read a reasonable jury would have said no i don't believe that i don't believe that this is the bank records who have a bank account again the bank records show that at best that some of the funds were transferred into the account on hall so it's circumstantial evidence possibly connecting him with certain aspects of the crowd but it doesn't show that he had knowledge of the crime that he had at any thing to do with the underlying events it shows only that he may have known about them in certain respects again the financial money seed money show up in my account i certainly take notice certainly but that may have been payment for and there may be other explanations for it it may have been that mr blunt controlled those accounts at that point and until that blood testified and said she didn't have control over those counts that was something the jury was entitled to believe and that that goes to my point that this was evidence that the jury could at least reject it and found that it was insufficient to prove beyond reasonable doubt and in that circumstance we need to pick a pro there and say was miss blunt's testimony did  to the weight of the evidence against mr hall and that is clearly the case both for its uncouple inculpatory value and more importantly perhaps the person planetoid value which would have made the jury more intimate more likely to convict him based only on his other evidence of abuse rather than the evidence was presented here and i'd like to clear up if i may something to that there's a bit of confusion i believe in terms of the standards to be applied in assessing a motion for severance in the government's case in chief and that is one when is the motion assessed is a pretty trial or is it during trial well then we have to assess it in light of the evidence that was actually presented but i understand what you're saying she seems to me to be an unnecessary begun to see because what we're really talking about then is a basis for a mistrial and exactly and i think we are talking about that  and i'm just using that as an illustration that in this case there is no basis to particularly put the pretrial motion and what we did in this case have after the denial pretrial we do have a motion for severance downstream and evidence is going to be testimony is going to be exculpatory not exactly sure where that standard comes from there are third circuit cases urban included that refer to that standards of her as if it doesn't mention it at all but urban in other cases by that standard but only in assessing claims in which the defendant argue that a codefendant who is not going to testify the joint trial would testify to separate trial of the defendant and that's the prejudice that the defendant in that case is arguing and in that circumstance the court of appeals as are understandably looked upon the claim with kind of step skepticism because why codefendant voluntarily testify to separate trial when they refuse to testify to join trial on grounds of self incrimination and that's where you get this four part testing well let's see whether they have any reason actually testifying that separate trial here would have exactly the opposite situation the defendant in this case or a hall is claiming not that the codefendant would testify or he wants him to testify but the codependent wouldn't testify in the separate trial and in this particular circumstance there is every reason to credit that because you need a blunt would have a right against incrimination in that separate trial and because you would have the right of spousal privilege which it already invoke is that corporate test really has no application here the only question is whether mr hall's trial rights or right to a fair trial were denied him by the joint trial and whether he was prejudice thereby and i think we've already established at least far as far as heart the arguments concerned that a right was was denied him fair trial rights were denied him and the on the issue of prejudice again you go over to the what was going to occur that separate trial and the evidence without