prosecutor made that point very clear to the jury through repeated references references to people and witnesses in the plural during her opening statement in summation both the magistrate judge and the district court hasan's petition on the basis that the supreme court has never explicitly held that inferentially conveyed statements so within the scope of the confrontation clause we submit that in doing so the courts below conflated the contrary to went on reasonable application progs of section two thousand two hundred and fifty four dollars the contrary two prong does require a supreme court precedent directly in explicitly on point but as was held in your the on reasonable application pronk and involve a more general rule and here are the relevant supreme court cases on the two lines of cases issue with the crawford in the britain lines apply to statements and the court has not cabin that precedent any particular means of delivery of those dates just crawford line of cases is never excluded inferentially conveyed statements from the category of statements that fall on the confrontation clause and the bruton line of cases does specifically include accusatory statements conveyed by inference there is at the very least a general rule regarding statements from which inferential statements have never been excluded what we have in this case is an accusatory statement which while not presented to the jury with quotation marks and while not attributed to a source was made clear to the jury the jury heard that mr caress go didn't identify the petitioner until after seven pm that methods of identification such as canvassing and searching you have on one minute for surveillance footage have proven fruitless but nevertheless the police knew that mr de hayes was a suspect by about four o'clock the prosecutor didn't not those cases can be relied upon by this court as precedent we think they can for the reasons stated in the brief and in the reply brief we would submit that an analysis of the precedents the supreme court precedents that were at issue the supreme court in saying that we are not allowed to do that unless he has unless they have done it themselves and i don't really see that just supreme court has ruled this issue and that's my problem that is i'm very sympathetic to the argument you're making but i'm having trouble seeing how the supreme court has already ruled on it and like i'd like to to follow even the general rules and i would submit that does not require that the supreme court explicitly say that on these facts or on the specific kind of facts the confrontation you know testimonial statements or accusatory statements are within the scope of the clause and applies that to statements in general regardless of whether those statements are conveyed to the jury by inference or explicitly that and i would also point out as we have in the briefs that the grey case which is one of the bruton line of cases did state that an accusatory statement is no less accusatory the being conveyed by inference and that where an inference is inescapable as i would submit that it is here based on both the evidence you know based on the totality of the police officer's testimony that they knew mr de hazel's was a suspect by four o'clock but haddocks at all other means had been of investigating and proven fruitless by that time that this would fall within the precedence even if there is not a supreme court case that involves a statement precisely like this one  ryan what you're asking us to do is not only extension of supreme court it's an extension of brian lyon in ryan the source and the content of the conversation was clear because the codefendant was in the next room  whereas here there is no we don't know jury you know wasn't told who the who the source was if this information or the content so isn't this even beyond rhyme well i would  the source of the statement was not really a nest necessary to the ryan holding because really what was that issue in ryan was that there was an accusatory statement that whose content was conveyed to the jury at least by inference and i don't think that it matters as certainly not on the crawford whether which was decided after the ryan case i think it doesn't matter under crawford whether the statement came from a codefendant from another suspect from an anonymous caller or mary jane what matters is that they the content of the statement was conveyed to the jury and that it was an accusatory statement and here even if the source was not made clear the content is made clear the jury go to that i just want to ask you that because the content was really made clear during the cross detective rivera when the defense lawyer did a lot of information about the nd person identifying your client up until that point it was put into direct testimony of detective rivera who was i think the st witness to discuss this always said it was that they had information that you're going with the ways from so many different sources that you can't toss a blee equate that with a case like gray or ryan where the source was in the next room if they had another source here on our i mean that could have well  going to the issue of the defense cross examination that happened after that one that happened after the horse had already escaped the barn by that time it had already been brought out in direct that the police knew officer had testified well i heard a rumor on the street that he was the shooter or you know i heard a rumor he didn't like the guy or i talked to the bike tender and he gave me the names of all of the people who were there and you know i was through them one by one you know that then i think this would be a different case i don't think we would be here if there had been information but understanding your theory every time the police said you know this person was a person of interest and then we you know and that's why  the confrontation clause problem right under your theory of the confrontation clause jurisprudence yes i think it would be a problem your honor i think that you know for an officer is simply to throw out there when this person was a suspect without providing some kind of a source by which this person was a suspect is going to convey to the jury that you know they had specific information you know not not just rumors not not not just seeing someone at the scene that they had specific information suspect is a loaded word your honor if a police officer testifies at four o'clock he's a suspect that conveys a lot more to the jury  be any supreme court case or even a nd circuit case where the source of the content of the conversation was not identified and a confrontation clause violation was found and supreme court case or any nd circuit case i would submit that you know that this does for women ryan i mean i understand in ryan the source was identified but i would submit for the reasons stated before you know ryan was decided prior to crawford and crawford i think makes clear that the source is not a material element so i would say the combination of ryan and the crawford line of cases testimony testimony is improperly recounting an out of court testimony saying that in my list of the confrontation there is an actual out of court statement from a specific non testifying witness that is put before the jury testimony was that the codefendant had said something specific about the crime and how it was carried out we don't have anything like that here and although we may think we know in terms of the people brought out that there was an on the phone call that another would the jury is know that is possible but in that case again a very unusual circumstance the court acknowledged that richardson had placed statements that incriminate inferentially outside the scope of prudent but it sounded the way th statement was redacted in gray and it was a detailed statement where they basically just took out the defendant's name and removed and replaced it with the word blank pleaded you know it was manifestly clear on its face that he was talking about especially because the prosecutor then asked the detective who recounted that confession after he gave you the information you were able to arrest great correct so the contrast here is to arrive at any  assume that the supreme court has never ruled directly on this issue would you concede that if we were allowed to decide the question ourselves for the st time we were permitted to do that even if the supreme court did not but the whole line of cases dealing starting with crawford and so on at the miller might be the so called logical next step in supreme court precedent but again the supreme court itself is specifically said you cannot take the logical next step this case is very different from mine to miller because again the there is not only damon but there is no implication that there was a statement until the defendant the petitioner self brought it out on cross examination that somebody had to find him there really are any number of ways that someone might a suspect again to degree where we know here that the police did not act on it and tell me had an identification so i do think that would you know i cannot predict what the supreme court would will do if it is presented with  problem with the lack of supreme court or nd circuit was for this extension but i have to tell you when i looked at the opening statement in the closing statement as i think that magistrate judges were troubling it does seem that having been precluded from going into any details of this anonymous call at the eighty eight was trying to imply that there was another witness out there unfortunately won't be hearing from all the witnesses that were out on the street that night that watch the defend you kill you your mind says for various reasons they won't take the witness stand but you will hear from him at least one witness at least one person will take the witness stand and tell you that he saw the defendant shoot and kill  this is not what the jury would have taken away from that it's taken in that opening statement what you read of the prosecutor is giving a precis your preview of what the evidence show and what the witnesses are going to be and one of the things she's saying and what of true is that this shooting took place on a street corner in front of a crowd of people and it's not appropriate to call those people witnesses because these people witnessed what happened and our position obviously is that what happened was petitioner who shot this man and that is what they would have seen i don't think that's they've been suggest anything other than there were a crowd of people there you're only going to hear from one of them for indeed various reasons  you know he became unavailable and again there's hundreds of pages of testimony about what happened to other people but you know also she refers i think to petition of complaint in this brief references to saying well you know when because he didn't commit this crime in secret he knew that he shot it he did it in front of a crowd of people so i think the prosecutor's motivation in making statements here and i noticed none of this was objected to and i think that's because at the time it didn't sound like you know the trial and happened yet it didn't sound like the prosecutor is trying to convey is that there are other non testifying witnesses she just trying to give a flavor of what happened here i don't know i mean i never really heard a prosecutor say we'll hear at least one an extra record but i do believe it's the case unless i think we do sometimes say that if we you know we know we've got one with her hands on one with us but we're not