the honorable united states court of appeals for the st circuit is now in session all persons having any business before this honorable court make it their attendance and they shall be heard god save the united states of america and this honorable court court is in session i was in that turning below and i read the transcript and i don't see why i know we maybe you know if you have been cross examined that point but i couldn't find in the transcript  why it went from nine to six well i cannot say that but he's suspicious you are because why would you place to defend them in these last nine picture lineup if you don't have any concrete evidence to tie him to the offense why i don't know  record is sal i know but you cannot take that point alone you have to combine that point with the other facts that are happening in this case through the course of the investigation in this case you don't only have that d but you have the newspaper article that their friend then west physically present just said they have their own government states he should have being our personnel lineup so he's very suspicious a game and  indicated the central question in this case is whether the trial court correctly allowed in three out of court identifications and one in court identification in this case the trunk or is correct that appellant sufficiency argument has to fail the only aspect that claim that again your honor the records i want on the point and anything else would just be speculation but it's just so odd that there was at least based upon the record that i've seen it's just that there was nothing at that point time person and a nine person or a six person or a obviously just asked us what do you say about the six person states this idea that the attorney should have been present for him that it should have been a lineup rather than a photo  otherwise but the government was within a well within its rights to do a photo rants at this stage of the proceedings and what about the attorney being present oh well on the record we had task force officer martinez martinez said reasonable conclusion there is that there would have been blood spatter evidence to santa our eyes off as a fingerprint we don't have a good reason to record ah but we do know of course from the case of the government's not required to you know disprove it you know it's disproven every hypothesis inconsistent with guilt that really the government's requirement is to prove beyond its defenses beyond a reasonable doubt and it really can be no claim that the government failed in that regard here and i would just offer that at you know two weeks after the events in this case the government had three out of court identifications of the same person and you know for further investigation  just going back though to the showing the picture was sheesh when you when you say that it was thirty years this nine percent of the case of the six person efficient you say there's one more what's the that other one is the identification by the witness who did the calls d the witness who went down the prior administration and says hey take a look at the newspaper and let me know if you see anything and the witness looks at the newspaper and also back a few hours later and said that's him arm and that right a statement and that's different than language to the effect that a situation where a witness perceives a suspect in the present makes an identification on that basis would be subject to suggestiveness now since this is obviously not exactly in that case but the words of the officer here uses here are just take a look at the newspaper if you see anything doesn't call him down to the station house and for the newspaper in front of him he dozens call and say hey take a look at the front page and tell me if that's our guy uses pretty pretty careful language and in court result made of it yes it all came out on the right you know and this is the same witness who mistakenly identified as closing clothing that's exactly right or are you in the really far from injuries consideration and just let us to question you know nothing about the one way or the other as to whether the person that made the six person identification had seen the picture in the paper questions with respect to the nine person or a as you have said the record does not disclose or explain why the appellant was included in in that already but you've suggested that there was perhaps a reason for it and are you aware of that reason i have i've had discussions outside that the context of the record yes your honor can you represent to us that there's not brady material there that should have been turned over i can represent it to the best of my ability that my understanding is there was an operating material that should have been  they work together they merely show there they have a close friendship they were they to they side by side and him we have to use we all do respect common sense in this case in the sense you honor that that just disregard the constitution there our forefathers were so wise that we have the constitution to follow and to have a great society thank you you are