that the jury deciding mr jackson's fate was repeatedly shown graphic video of him violent attempted murder and callous robbery they were told that mr mr jackson participated in those crimes and they were repeatedly told that he had so far a steep punishment and continued a criminal lifestyle none of this was relevant and i mean the problem that i have with something like this is to me player means it's so obvious the judge should jumped up a notice him or herself so you got this video playing where in the sequence is the judge supposed to jump up and suddenly go oh my gosh when you turn this video off it's a matter of a few seconds how is the judge supposed to prevent this playing air in the absence of an objection but no one objected no one saying we shouldn't show this ok so the judge is supposed to know that when they bring it to trial oh this is the video i've seen before and this is the point at which i need to cut it off this is so the d v d and its content and the fact that it involved a attempted murder and a robbery that occurred after the crime in question had been completed was discussed in several of the pretrial pleadings stole and believe that the judge had seen the video ahead of time so it is true that there was no objection in this case and certainly that would have been the easier didn't raise this into your reply brief right no it's raised as clean three in the opening  argument royer away then we would be expecting district judges that any time anything's going to be shown to the jury they should review it first and they should determine whether it's relevant they should determine whether the prejudicial effect outweighs the pro good of that or the fact blah blah blah and do all that so a spontaneous without being asked or without necessarily knowing that the entirety of this video that they've seen before is necessarily going to be played again that's the new rule we will be announcing going was argued to the jury whatever it was you say it but i'm assuming i won so many things where there were quests for a you know limiting instruction in other words in trial they want to show you i would you give to assume the judge gave the fifth circuit charge right so was there any objection to the fifth circuit pattern charge given to the jury in terms of how to handle this kind of  evidence no your honor the only objection at all in the record is that toward the end of the video we're not sure where given how it appears in the record toward the end of the video trial counsel does object in continuing to play the video i'm discussing how it's about my question dan to you is given the questions i just ask you in your answers how do we be clips all of our cases to get two prong three or four here one of those other remedies were you know of vailable in other words of the district court refused to give a living instruction this record didn't give the pattern is you know is the law of the land it's not absolute and that's why there is a plain error review standard because occasionally there are errors that are so present that they call out for this court's review at prong three a plain air certainly is court would judgment at home for which i think is to your honor's question as to the exercise of discretion from this court that would be a fact specific determination that this court would make so i am not sure that it would have all that much  was no objection and that is wasn't there some dispute about whether that was jackson in the video was certainly they argue that it was not ok and so this is a few second video of which we show him with a gun which is the key point but is it him well we see him again garcon over there and robbing the victim who's been shot so we get to see him a little bit more so in this fairly short video where we're trying to decide if this is jackson and we see him essentially twice isn't it relevant then and isn't it part of the video in determining identity  to identify jackson by seeing him again because if i see somebody for a second away when i see that again now i seem again i have a little more time to look at him now i can better identify said jackson or not as the juror or anybody else i think there are a couple of answers to that first the government has never a ledge that this was introduced for for a for be identity at didn't second the video is actually i think about fifteen minutes long before it gets to this point there's two shots there's the shot outside surveillance and then there's the inside in the back room of vojislav where there's the dice game happening and the record makes clear that the jury is looking at both of those to looking at the dice before they look at what happens outside so how much of the video did the jury see i'm not certain of exactly how much of the inside gambling evidence was shown just as it's not entirely clear from the record but my understanding is that they saw the entirety of the video which i think it's about sixteen or waistband that the government would have lost nothing of evidentiary worth in proving the felon in possession count this simply isn't true to prove a felon in possession count the government had to show three things it had to show first knowing possession of a firearm how to show second prior felony conviction and third that the firearm traveled in interstate commerce now the shooting depicted in the video helped establish two of these evidently two of these elements directly first the video connected the gun to the casings found at the scene helping the government establish the interstate nexus ripped element here the government presented a trial an interstate nexus expert he examined for shell casings found outside of his lounge and one live round he testified that these were forty five caliber casings and they bore the markings of companies who did their manufacturing outside of the state and south korea and illinois respectively these bullets necessarily traveled in interstate commerce but only with the introduction of the video of the shooting could the government connect those bullets to jackson's handgun remember this this was an interesting case in that there was no gun ever recovered here no firearms expert who was was ever able to testify of what melvin jackson's gun was based alias was taking the hospital and left and clearly didn't want to cooperate in this oh it's like the medical records he would have been at the hospital the medical records would have been at the hospital but my understanding is that trial counsel at the sentencing stage just didn't see any compelling need to present this this is a man who was shot several times from virtually point blank range in the abdomen not in the finger or the the toe but in in the heart of his body that  in the abdomen from a few feet away several times with a forty five caliber handgun doesn't meet the standard for permanent or life threatening injury why is that permanent will and i mean there's cases your honor that any scarring way beyond scarring when you're honored there's case law to the contrary the minor case from the end circa two thousand and three indicates that both scarring and a bullet remaining in the body in fact concept that you don't know that the bodily injury again this isn't something that applies life threatening that's to be life threatening your honor but this area of the true level serious is the two level that's not that's that's correct your honor it has to be serious or excuse me life threatening life threatening or permanent and would you know that again this case might be different where he shot from a long distance with a b b gun in the torso or were you shot at point blank range in the hand or the foot but when you're shot at point blank range in the torso it necessarily is going to carry a substantial risk of of death or substantial risk of permanent injury just by the very nature of the act itself and if the court were written to require more evidence in this case of that of the injury here then it would be difficult for the government ever to prove a four level and hence meant in a case where the victim isn't cooperated but unfortunately is down here in new orleans i'm not i'm not sure judge but again i don't even long about the four level i goes back not even sure how we would go about maintaining their possessing those records when again the victim gave gave an alias just not  evidence again i think the case was clear enough that when there's such an obvious act that just necessarily would result in a particular injury that it satisfies the standard for the four level it has been in this case but i would caution that  if the court disagrees on this point the proper responses is to remand to the district court for recent and saying it's not to vacate the judgment in this case and what's the difference in the two level on the four level in terms of t again the judge i'm not certain what the guidelines differences but i will say the judge the judge departed up the judge wasn't interested in the guidelines in this case he sentenced mr jackson to thirty years in prison where the ritual guidelines part not just because of the calm content of his actions in with respect to the charges for which he was convicted but also because of the relevant evidence presented at trial that he had shot yet another man not presented to the jury of course presented at s are we required to remain and when it's not clear particularly on preserved error that the judge didn't consider the guideline even for a degree a very it's even to say well ok i don't think the guidelines are qui we think that the nature of the act the fact that four cases were found on the scene for forty five caliber handgun casings where shooting occurred just mere feet away and the injury was sufficient enough that in the us appeared on the scene if you watch the entire video the man is on the ground long after melvin jackson leaves the scene he's on the ground as police show up and as in the us appear on the scene he's clearly in pain which i understand is not established the floor level and has been in the of itself but in this found injuries significant enough to take in the hospital and beyond that the victim just didn't want to cooperate and that's that's what we've got on the people and so i we believe that this is enough to satisfy the four level and housman but again if the court a moment about the interstate nexus piece in why this case why the introduction of the video was important to connect the casings to the gun because the the expert testified that he couldn't tell the caliber of the weapon the place of manufacture of the weapon anything about the weapon based on the grainy video tape in which the gun only appears for about a second or two he needed those casings recovered from the scene to make certain inferences about that weapon once the casings were connected to the gun the interstate expert interstate commerce expert was able to testify that the gun necessarily also was a forty five caliber weapon and that it necessarily traveled in interstate commerce because no forty five caliber weapons do this if we accept her argument that it's obvious he was the guy and he persisted and so we don't need to see the rest of it then isn't it also obvious that the conviction wasn't affected by that  evidence he didn't have to plead not guilty and so having put big government to his burden they're trying to meet that burden i think you're exactly right your honor again where there's a distinction between the jackson versus virginia standard in what will what level of evidence will withhold scrutiny and review for sufficiency there's a difference between that and the government putting on compelling evidence to actually get a jury of twelve people to make a conviction they could i guess what i'm saying is if it is so obvious from the video that it's jack's and he's possessing a weapon then the rest of it should be harmless error even if it was air it doesn't affect a substantial rights to put it in plain  language it certainly does not i mean again i'm sticking to whether there was error in the first place because i think any error in this case was absolutely not clear obvious and jackson camp the hard part for me is just the judge having to jump up in the middle of this i e if you seem to video before this is kind of requiring the judge to go all in this a video it's make sure those last five seconds aren't in there you know and or let's have a big argument about it that no one's asked me to have it just i realized player puts lot on the judge but in these things about sentencing guidelines i mean the judge supposed to review that that makes some sense to me that we put that on the judge but to put this on the judge seems to have no relationship whatsoever to have trials actually work but completely agree or  think again we don't want to double count we're here on plan or a view so we it's difficult you know we don't want to double count in saying that the lack of an objection at trial just indicates of course that the simply wasn't that unfairly prejudicial but i think that's substantial substantially unfair prejudicial effect this is it this video is black and white the shooting in this video happens off screen you can you don't even see the victim being shot you don't even see the shooter pull the trigger others no blood in this case it's a black  audio there's no sound you don't hear crying or asking for help or even the scary sound of a gunshot and again jackson himself didn't even do the shooting jackson possessed the gun and passed off to his associate to do the shooting but the fact that he's not the trigger again this were not this isn't a matter of introducing a distant past you know a conviction in the distant past or some really unrelated future event this is about introducing evidence a video of a shooting robbery that's really part and parcel of the the loneliest possession offense this video from the time that jackson's handgun is pulled from his waistband the time at which jackson argues the video should been stopped from that moment to the moment that jackson leaves the screen after robbing the down victim we're talking twenty two seconds twenty two seconds this is not some event remote in time place and and a context this is very much part of the same criminal episode which is the the on air at all it was not arrogant it's not there at all your honor again it had an objection been made at trial firmly believes that the proper response from the judge would have been to overrule that objection again you know it's outside of the the record i'm i'm not sure if the judge witnessed the video before hand jackson says but the judge did i have no reason to believe that isn't true but again this is evidence that that the trial counsel for jackson was very aware of the trial that's evidence that the judge was aware of heading in the trial and there's simply no reason to suspect i'm wanting to be clear again this is my perception or plan or it may not be others but  judge should affix this his or herself without anyone pointing it out and that to me in a case like this is kind of weird it's and rather i'm just not sure mechanically when it is the judge is supposed to jump up and go athlete got to stop right here and on their own with no one ever same thing particularly if this video has been shown over and over pretrial we've been talking about nothing but the video for the last you know ten months and all this said the judge is supposed to be the one that objects i understand that's you know we they still have a plainer arguments for her i'm not disagreeing with the standard view i'm just thinking what is the impact of our ruling in your opponent's favor and it concerns me i completely agree i think the tr jackson with the shooter no there was no allegation from anybody that jackson was the shooter but there was allegation in fact there's allegation on appeal here with respect to one of the guidelines issues that there was insufficient evidence even under the lesser punished thank you judge proponents of the evidence standard that jackson's gun wasn't even used in the shooting that it was somehow a mysterious second shooter who came you know cruised in minute and pulled the trigger not going to gauge with that argument because i don't think it's it's one of the stronger ones that jackson proposes but again this is just by way of saying that this absolutely was contested both the trial and remains contested on appeal is jackson's role in th are not to not to beat a dead horse we spoke about the interstate commerce element i just want to speak one first second about another aspect in which this video was was necessary for the government to prove its case and that's with respect to the op or delivery of the firearm to prove no possession of a firearm the government had to show that the gun that jackson possessed was in fact a firearm that's a term of art as defined in eighteen u s c nine twenty one as a weapon that will or is designed to or may readily be converted to expel a projectile by action of the explosive again this was a weird case in that a gun was never recovered and was never presented and the only way or the best way that the government could demonstrate that the gun is what it appeared to be was by conviction in a case that involved the testimony of a police officer indicating that a gun had been discharged because that discharge proved operability was the shooter charged in this case in the video he was not i this point i don't believe the state has prosecuted him no then jackson was charged with with attempted it's attempted murder for this in the state system but again he was released on friday by the time of this case you pick up the  about the fact that this is a grainy video a black and white video and that the again the question that for a three stage is whether or not whether there was any risk of unfair prejudice but whether the unfair prejudice substantially outweighed the probative value of the video we took the probative value is necessary both for the government to prove these two elements of its offense and also just to provide the relevant back on the rez guess die as they say about the event again we're talking a twenty second period from the moment that the handgun  revealed to the moment that jackson is off the screen and out of the picture for good so the probative value is enormous here and the risk of prejudice what well you know we won't get up here and say there is no risk of prejudice that punch it is simply isn't that the guidelines i mean like to read the definition of serious bodily injury that's in the guidelines serious bodily injury is injury involving extreme pain or projected impairment of the function of a bodily member organ or mental faculty or requiring medical intervention such as surgery hospitalization or physical rehabilitation it's unclear how the government's arguments about what happened don't also fit within that also in the  probation officer's responses to the objection to the p s r so at page six twenty eight of the record the probation officer says that they were that the government indicated to them that the government possessed medical records which would demonstrate this issue so to the extent that there is an argument that the medical records have not been obtained by the government i think the record belies that saw a gun or never presented to defense counsel and as far as i know they were never presented to defense counsel w proceedings even where there's an upward variance from the guidelines still the guidelines calculation the correct i was totally she must be the starting point so we can infer that it impacted the sentence imposed even read the sentence is outside what would the differential between the two and a four i believe that the bottom of the v two side the bottom of the four is the top of the twosome two hundred ninety two months would be at the top of the guidelines instead of the bottom of the that reflects that the government said we have medical records it would show it was a life threatening injury and no one objected to that conclusion the previous arc and that form a basis for the district court in their response to the defendant objection saying only that the government has indicated that they the government house possession of the medical records it doesn't mean it would show that it doesn't make a representation that the probation officer has reviewed those or that they're asserting them as fact so i think th believe sufficiently demonstrate turning to the original issue issue three in mr jackson's brief wanted to highlight just a couple of things first on the interstate comm element there are several key just record cases in the eastern district that demonstrate that no firearms are manufactured or mass produced in the state of louisiana so to the extent that this attenuated description of the casings found on the ground there probably casings from the gun that's no longer on the screen but that had been taken from mr jackson's waistband and certainly there is a more direct route to that  while the firearms expert did testify that the forty five he was not able to identify whether or not that you were saying it was totally irrelevant he's making a way that it is relevant and then then you get your fourth rebalancing and all that but it seems like that's at least an argument that it's relevant i mean although there might be a different way to prove something that doesn't make it wrong for the government to prove it this way certainly that would make it more relevant that as the supreme court has noted in old chief there's a difference between other evidence that's available that's one of the considerations that i when you're talking about poincare or showing that something is completely irrelevant and also very prejudicial is a better place to be than where it's relevant and also prejudicial right ye the probative value of this is is significantly low and finally to the government's argument that this was not a particularly prejudicial video and i think that that is belied by the record and also by a common experience from almost all of these jurors this would be the first and only time that they'd ever seen a real person shot and if they'd ever seen a real person robbed and certainly while i don't know about that i mean you see this stuff on television all the time real and fictional i mean i think much more often on about looking at the yeah but i don't know that i can assume that i believe that nobody's ever seen a real person shot when every night on the news somebody is getting shot and we're seeing videos of it police dash cams and body cams and all this kind of stuff it's become unfortunately quite commonplace to see people being shot