on this that's fine i don't even know if i need ten minutes because this is a very simple case fact pattern wise and there's one issue the main issue here is w there police or law enforcement actions that tape did and identification of witnesses that appeared at trial and testified against mr jones and my position is that is what it is say it said he was a dead a fight as the person that committed the robbery and it's unclear but we believe that it there was indication that d n a evidence connected mr jones to the may robber and what's important about the may mr johnson st right there was however did seem to have been taken a little bit because the d n a was tainted there was it was contempt potential camp contamination because the d n a was found because it was a security guard officer who or who was outside the bank and he saw the perpetrator leave the bank and discard a scarf koofi and sunglasses and also there was some it was a dye pack and when that was retrieved it was it wasn't put in separate bags and there was indication at trial that there could have been a taint and there was a nd d n a did not match mr jones so it could have been another person that committed that roberts who are you challenging are you saying that this letter contaminated both the september conviction the may conviction yes because i believe that they're intertwined and you can't separate them and one of the points that i want to how you intertwine maybe september conceivably could those who argue about how do you say we have somebody that we have identified through d n a as being a possible person who committed the may robbery what's so wrong with that it was to the teller who was at the scene in may and basically that is correct however given a major point is it was the d n a that linked mr jones to the robbery it wasn't his facial features or any at at the trial there was no voice request there was no show up of mr jones's voice at the trial that the governor's ruling could have required him to speak into that so you're saying that this letter is a result of send this letter that there's a due process violation that occurred ok how would this letter how would it be any different this suppose they didn't send a letter but through a police blog or whatever means there was a newspaper published city that the police had arrested gregory a johns for the capital one bank robbery in may and the teller read that newspaper story and did the same thing you did in this case how would that be any different than sending a letter i believe that would be different because in this case your honor the letter was sent by the essex county prosecutor's office directly to one of the victims and in an obligation to send a letter to that's what the government's making the statement during the argument that statute requires that that letter have been served there is a statute yet you acknowledge that yes i do but i don't have knowledge that the statute overrides my client's cross and i understand that i understand that you think that the letter is materially different as it relates to your challenge to a newspaper report of the arrest yes judge judge is what i have tried many cases and in my experience i believe that when a witness is confronted by a long force man or any agent of the government whether it's f b i a police officer that they take that very seriously and it's different if you're a fish or your argument was what's the difference between if it and it's my position that when government and law enforcement has direct contact with somebody that our constitutional hair should go up in the back out of it it didn't say go on the internet look up his privacy and our notions of what the police can or cannot do and one law enforcement can or cannot put i'm the internet have changed dramatically many of the cases that were cited in both the briefs took place before when at least when the woman's apartment in peri they weren't saying there wasn't a letter where they said but the police this is the man but the police officers in the apartment so you actually do have a confrontation so you have the police with the victim in the case where the witness in the case right yes judge i gather yes and she opens a window and says there's your man i was that he distinguished perry from the sphere i think that it's different because in this case you actually had the prosecutor's office sending a letter saying this is the man and in this case judge what i'm asking for is a clear that there be a hearing because without the hearing to determine if my client's procedural due process rights were violated we're never going to know it's it's pure speculation that what occurred at trial was it a violation of my client's due process rights that the witnesses testimony at trial what would you get from here if the hearing judge one of the things that was made a point made by the government in the brief was that well  was she was asked if it effected her pride and if occasion and one of the one of the key things when you do cross examination is he generally never ask a question that you don't know the answer to unless the answer doesn't matter and in this case if the defense counsel said you didn't have an effect on your ability to identify mr jones she could've said no we're the looked on the internet without permission so to speak i think deep down she realized that really wasn't a lie he wasn't the just thing to do but look at all the evidence that you've got good d n a evidence that john's committed to me robert you got for the security guards just description of them a robber got doors the teller in september in court identification of jones as the september robber you got junk justice testimony that the voices were the same she didn't remember the voices and they said seemed very similar that you have of all things but the videos that the jurors actually looked at how can we say that we can step in and step in effect crime couldn't look at the video and say yes that's the man but that's not proof beyond a reasonable doubt and the other major point about to counter your argument judge umbro is that robbery number two bolstered the identification of robbery number one because if you believe it is if you believe that it is almost a door was able to properly identify mr jones as the perpetrator of robbery number t say it was just a flip what hurts him in september was using the d n a from mary well george if respectfully if there was only the robbery of the mc the only a trial of the may the clothing that was recovered and there was testimony from the agent that it could have been any to this one question your red lights on but if you even if you were able if you would if you were able to get by the question of whether or not the letter constituted impermissible state action how can you show that this letter was unnecessarily suggestive that ties you with my fact that we are in a no constitutional right to a lineup i understand it but i think in this scenario they knowing that they have it so when they they believe committed to robbery that perhaps you're not getting back to the question i ask how is it unnecessarily s because i would leave that it prompts the victims to go on to the internet and to access a government created mug shot but for the fact that this is a st century in that government created mug shot is on the internet access of all to anyone that wants to find it it creates a constitutional taint on  motion persona so there's no coders going to be she's still a version correct but no one argued that you know i mean the jury is instructed as it always was that they were to each count with separate and there can to consider them separately so there's no argument that because he committed the robbery the st time he must necessarily be the one who committed the nd time but the robberies were intertwined i want to get back to the d n a point of the the argument about contamination of the d there was a scar that had a hat wrapped inside it the agent i'm a senior officer who picked that up did not realize at the time that the pat was inside this car when he got back to headquarters and opened it up he realized there were two so there's no there's no way to assail the d n a evidence on that st robbery so let me get to why i came here and it's to argue that there is no state action with respect to that nd robbery only one for which we offered identification testimony police conducted an identification before sending that letter i mean in theory they could have but i by way of explanation only in this doesn't appear in the record but i think what happened here is the st probably because no gun was involved was primarily being investigated by state authorities and nd robbery the f b i took jurisdiction over even though they were working with the state authorities because the gun was used from what i can understand what happened here is after mr jones arrested for the st robbery the information that it takes time to get to the f b i agents who are responsible for the nd robbery and that explains the two month lag in them coming in or on their way to the bank that day in april or may of two thousand and fifteen with a six pack to show the tellers when they realize the tell there's nothing in the letter that instructs that it didn't contain a picture in a thing can't contain instructions about where to go that urged him to go find his pictures and the cases that it said that were leasing a booking photo to the media without more insane action is because they say that not taking the additional step of telling the the can the witnesses to go watch the news or do something isn't putting the two together i mean in shaver's what you had been putting the a victim to to come to court and know which case break they're allowed to follow the proceedings there and they're allowed to talk with the prosecutor about the progress of the cave could be very hard to do if you didn't know which case they were talking about  i would like to get to the court will bear with me if we get past the state action part which i hope this court won't i think you can harmonize the case with perry of the witnesses who were sitting outside a court but if you get past that again you still have to question whether unnecessarily suggestive and b because it is legally mandated a requirement to send that letter after the st robbery and i think ago in college right no one would say that that was an identification procedure let alone and then necessarily suggestible and after that a crime in this case it's a happenstance that at the same bank was victimized twice  scared you know he said did she look like somebody who wanted to be in the in this courtroom i mean she she clearly was not scared at that moment when the moment came and to my friends point you know why i asked the question in front of the jury you don't know the answer to you said we're not going to ask her or ass off into a in effect the only reason you're taking him out as the guy who did it is because he saw the much i'd like to point out that they had investigators i went out and that as i should have been in reading the record but this notion that mr gentile recanted and contradicted what she told the agent is not actually altogether true if you read  that cross examination of her very carefully what happened in its defense counsel and it's a different defense counsel who tried with asking a question that put false premises into the question he was mixing up who did what of the three tellers and sharing information to the press was not an identification procedure even though a witness saw the name in the face on television isn't it more significantly more pronounced than i happened here rebuttal to that argument in i understand why you are asked that i believe that the fact that they were coworkers working for the same bank distinguish is that it won't work because they were in the same bank and they were one unit so to speak they work together on a consistent basis so sending a letter to one thank them point a small equivalent to sending it to everyone that how are you supposed to know that that's necessarily going to happen you're saying it's likely in this digital age it could happen but how's the government supposed to know that that's going to happen in this case the thing that wishes it is it's not a big there was a problem why not object to having a consolidated trial but i can't answer that question perhaps the attorney should have but i didn't raise it on appeal but i believe that down the fact that the government in this case knew that it was investigating not one but two we laded robberies makes a difference if this is a case where it was just a speculation or the possibility of two different sovereigns the letter came from the local prosecutors not from the u s attorney's office right that is correct yes and at some point in time after the letters when the  the letter would say in april two thousand and fifteen yes ok and you're saying that the f b i was not involved because i thought the f b i got involved because whoever committed to september robber used a gun where there was overlap but i still maintain that it was the essex county prosecutor's office that committed the unconstitutional can't that's not necessarily so i mean just because you had a prior robbery at kapalua and with your gun was not there's not mean essex county would have had a case involving the september two thousand and fourteen armed robbery of that back that most likely would have gone to the f b i but i think the point i want to stress is a hearing if had been held would have established if there was a taint and i want to leave yours would be the thought that mistaken identification is probably one of the leading causes of a wrongful convictions and we were dealing with identifications i think that the court should be extremely sensitive about what you're saying is that the jurors made a mistake in identification with rescript regard to the film that was taken of both the may and september rompers possibly think they may not even have used the video to make the determination up but in effect what you're then saying is that it's there's a sufficiency of the evidence problem and how my to say that there's a sufficiency of the evidence problem  that the videos were clearly insufficient for the jurors to have found that the mr jones committed both robbers i believe that the main evidence here was also ready your testimony because her stating that she believed that mr jones was the perpetrator of robbery number two i believe impermissibly allow the jury to make the something that oh if then we believe that he must have been the both counsel who will present arguments will take the matter under advisement and