witnesses that are not there to cross examine it implicates the sixth amendment right to confrontation and although this court has in some instances allowed for the admission of such testimony it the facts of this case do not fall within any of those prior precedents specifically i'm talking about martin and farmer it was this one different because there is  there were videos of the witnesses interviews with the officers and those were admitted into evidence or i guess they were so the district court did have the opportunity to view those videotaped interrogations does that matter because then you do have at least the district court having an ability to make a credibility determination not just on the hearsay testimony officer of what they said but actually watching the interview i think it's a valid factor that the court did properly consider with regard to the reliability of those witnesses and it certainly is the case that the district court at a better opportunity to gauge credibility based on those videotapes however we see we don't believe it's a sufficient factor for several reasons in order to find good cause to dispense with the sixth amendment the court needed to find first of all that live testimony would be difficult or expensive or some danger to an informant with regard to the difficulty or the expense of securing this witness absolutely no basis in the record to conclude  that one witness detective buckley testifies he went to the original home to try to find nisha douglas someone else lived there he checked the file again realized there was a new address for her near forty third into say oh he went there on a single i cajun music was on the lights ron he knocked on the door no one responded and that is the extent of what the government demonstrated of their attempts to  would contend we don't even really get to the reliability factor which would relate to the issue of whether or not the videotapes are sufficiently reliable but we really don't get there because the court the government needs to show the first prong and that is that the witnesses were unavailable that it would have been difficult or expensive to bring them into court and that simply is not shown in this case and there is at the end of it then is that the end of the analysis yes yes we believe you don't get to reliability based on the record in this case now there is also wasn't there though some evidence that the two witnesses feared the defendant and that's and i'm judg anticipate my very next point that is also a basis in addition to it's a part of the first bell factor regarding the danger of the court to show danger to and i would say bell's talking about maybe an anonymous informant i don't know that bill certainly would apply to this situation but for the sake of argument let's assume that it does there's certainly a difference between danger and fear there's a difference between a danger to a witness and a witness not wanting to testify or as the record indicates these witnesses being uncooperative so we believe under either of those aspects regarding the first bell factor that the record is is insufficient a witness being uncooperative or being in fear is not the same thing as showing a danger to that witness the other thing to point out judge in this goes to the question of the reference to informants who are not  witnesses is arguable that there's no distinction between them showing up in court and the one of the videotapes i don't believe the record supports a finding which would be necessary to admit these that these witnesses were going to be in in more peril in more danger if they showed up in court as opposed to just admitting the videotape statements which is what occurred in this case so we believe based on the record in this case for this detective to simply go on one single occasion to find one of three witnesses that that's not sufficient and that also it's not sufficient for the record to for the court to conclude that there would have been a danger to any of these three witnesses and also with respect to the danger issue that only there is some basis for the court to conclude that nisha douglas and his eco douglas were fearful but there's really no basis to conclude that germain oliver there's absolutely no no allegation that he was afraid in any way of mr sutton so for all of those reasons we don't think the court should even proceed to the second step which is the reliability now judge kelly has raised i think a valid distinction as to why maybe this the court in this case was in a better position to evaluate credibility certainly that's a better position to look at videotapes than just to hear an officer recounting what that witness said however we believe this case is different than farmer than martin for a variety of reasons which all speak volumes to the unreliability of these witnesses statements first of all each witness lied repeatedly not want i think to take the buckley says at least ten times we have repeated and consistent fabrications by each witness secondly each witness had a motive to fabricate nisha easy kill and intoxicated either through drugs and or alcohol or or some combination of the all of these three factors are very relevant to a course of terminations of reliability and these these are adequate basis to distinguish  types of situations where the court did allow hearsay testimony and when you look at the physical evidence in this case it's overwhelming there's blood i mean arguably is the one that dropped the yukon off it's found it nice his house there's blood throughout the house there's blood under the fingernails of both nisha and is douglas davis has broken finger nails which would be consistent with a struggle and compare that physical evidence was he's undisputed with the statement that nisha gave which is oh i don't i was passed i was in and out i was losing consciousness i heard a little bit but there's absolutely no indication of anything any explanation for why she would have blood on her fingernails why she would have some broken fingernails so that as well we have overwhelming physical evidence implicating both nisha and his ego which further supports our distinction of saying these witnesses had a very serious  and incentive to fabricate and cast blame and also to be uncooperative if asked to come and testify some for all those reasons judge judges we think the court's ruling should be reversed thank you  please the court my name is mike green i represent the united states in this case and we believe that the court did not abuse its discretion in finding good cause for the three witnesses clinician douglas's eagle douglas and jermaine owens to not been severely assaulted by mr sundered some years prior he had severely hurt her zico douglas also was aware that fact as he killed douglas testified that in the trip to the hospital when he was following the  in with in this car they had guns they this is on pages twenty seven and twenty eight of the hearing transcript the guns they were talking about the things they do to people so there was obviously very severe more than sufficient evidence to find that these two witnesses had reason to be terrified is that different to state to say what you've just said that there's enough of the evidence to conclude that they would have reason to be fearful if they came in to testify is that different from actually having a finding that that those particular witnesses said we are very fearful we don't want to come in and testify well i believe the district court basically did that in its memorandum i mean it found that they were credibl terrified of the defendant the so and so it's so it's so in your view the district court can and can make those conclusions and i mean it could be that neither one was particularly fearful or not fearful enough maybe they would have wanted to come in and testify against somebody that they thought might then go into custody and that could be flipped in a couple of different ways and i'm just i'm just interested in whether we really need that to come from the witnesses themselves or whether we can let the court can look at the records whole well i think that they would be fearful so are there for or i think they could be fit fearful i believe the court can look at the record there was evidence they told the police officer in the came through the interviews that was before the district court i think this quarter in wayne you know this court can look at the record itself as if it's officially developed and also find that the good cause has been established that these witnesses had reason to be afraid c would you address the argument that there's no reason to believe that mr sutton would be more likely to retaliate for a live testimony than recorded toast of what he's going to know either way who testified against him that's true but i think there's a difference when  you're sitting there and these people get up on the witness stand in front of you and testifying to put you back in jail and there's a confrontation there i think i think that that does heighten the fear level of the person who has a reason to be afraid in the united states since seven five seven fed third seven twenty eight and then on page seven thirty three this court said many courses many cases have held good cause for not producing the declarant is shown when the defendant has a violent history that makes reprisal a possible so there this court was say that when a when a person the defendant has a history of violent history that makes reprisal just a possibility that good cause can be shown just from that by for not producing the declarant and that's what you have here the other by focusing on the fear of testifying are you implicitly saying that well the efforts that the officers took to try to subpoena these folks standing alone would not be enough to make them and unavailable that you need the combination well i think the efforts to bring there there was testimony that the officer went to davis or excuse me cliche douglas's residence on a couple of occasions and candor the district court found its memorandum order that it didn't find the efforts to be particularly vigorous on the government's behalf to secure the you know at least that the united states is position is really just sort of set that aside there was because of the of the danger also there was evidence that the state court proceeding had to be polled because of the uncooperative nature of the witnesses i think again it's a fair very fair and friends and i think that the cooperate nature goes to again the fear of this defendant who had a violent history the other thing the district co found here was that all three witnesses would have had fifth amendment problems that they could have been unavailable through the fifth amendment that all three of them would have had to have testified to involvement in at least some role in committing a crime and so the district court made that explicit finding its memorandum in order and that is another thing that this court can take into account you know the united states believes that this case is squarely with the informer and martin is actually as judge conversations with the virginia probation officer as well as some police reports the government at the district court level don't even try to argue the expense of bringing the people in and that kind of thing and this court the panel majority understand you were in the dissent on that case but the panel majority found that it the panel could do that wayne and find it was unduly burdensome there you're talking about people getting on airplanes and flying but here you're talking about physical danger to potential physical danger to two witnesses and even three you know jermaine it is true that your main all over there was nothing that he's himself specifically was afraid but again mr sutton there's a history of violence here we know a blanket of fear that sort of surrounds this defendant and very clearly makes people reluctant to come in and this is where the rules are sort of structured for this thirty two point one is structured for a situation like this this isn't a jury trial i not beyond a reasonable doubt the sixth amendment right it's it is relaxed here that is just the way the law and the rules are written do in a sense take into account this type of situation in the united states the martin  the evidence of a sexual assault of a victim was was was hearsay that in through the officer who interviewed her as well as a doctor who examined her but the evidence of the assault was hearsay through farmer united states v farmer the same thing a domestic  the evidence came in through the police report and the officers who took the report but again you have situations where violent things are happening to people for various reasons fear not the person not going to get involved the united states is not held in these types of situations because the liberty interest here is only conditional as the courts have held it's not a you know it's on walks and not guilty they have to go through a jury trial beyond reasonable doubt they have an absolute liberty interest at that point but the point  supervised release it's a conditional liberty interest and so here is the thirty two point one federal rule and then the law rule to look cases interpret it or trying to sort of walk the line between what's fair and also  getting making sure that these issues can be resolved you know i would also think that it's relevant here that because of the interviews and the transcripts in a sense mr sutton wasn't of was afforded an opportunity to  confront his accusers because there was a lot of evidence put in about how these people first didn't want to implicate him they did tell inconsistent season the stories the district court noted that that's that's sort of twisting around the idea of cross examination it mean that these folks told inconsistent stories i don't know how many lies he says ten and in the end never really landed on a story that really internally made sense isn't that really the kind of situation where cross examination is at its peak a value into trying to determine what happened and whether or not these folks have a true motive to cover up their own involvement and point the finger at somebody else or not the all the issues those issues were brought out it was brought out in frame for the district court in the district court made its finding that in the end of found them credible found the three witnesses credible and their version along with some of the other circumstantial evidence they eat the district court made it finding and the united states does not believe it was clearly erroneous that mr sutton at assaulted mr eisenberg i see i'm out of time if there are no further questions i will step aside thank  i to address a couple of the points brought up during the government's argument we do believe that there is an independent basis that any fear danger must be objective and based on the facts rather than simply based on the witnesses claim of fear  judge kelly did raise that issue with the government and we believe that is a valid distinction that the records to show that especially in a case like this when the only basis the only evidence of that comes from the witnesses during the interrogations and if you do the interrogations which this court has access to you'll see that detective buckley had extensive opportunity to to confront these witnesses to threaten these witnesses we would contend to even somewhat suggest what they should be saying and mr sutton should have had that same opportunity if you look at the statement eventually given by nisha davis at some point she just says i don't know anymore she says i passed out i was drinking heavily i don't really remember she does give some statement about mr sutton at some point contacting her and claiming that i think he messed up the victim at a gas station but then she later admits to fabricating that so we think this is exactly the kind of case where cross examination is absolutely essential under these circumstances and while the protections are less than a jury trial they're still very significant that in some cases there is simply no alternative to live testimony and we would we would suggest that based on the circumstances of this case and the extreme degree of unreliability repeated fabrications of each of these three witnesses this is one of those cases so those reasons would ask the court to reverse what happened below thank you who have counsel thank you for your arguments to the case will be submitted and