quite a cast today the three headings for the sake of time we'd cement that mr benson's right to due process and fair trial have been violated and probably his strongest argument is one that connects the nd argument the rd argument concerning the testimony of brandon douglas about what codefendant brian brown sa that incriminated mr benson and how the government is closing argument for further that we've obviously urse the court to find that those statements were testimonial that ok if this is an eight hundred and one statement party against say the party opposing party if mr brown's an opposing party because he's sitting next to mr mr benson and if the court's going to give a limiting instruction the limit in struction is insufficient under the circumstances and either this court case law when there's a quote specific reason to doubt that the jury it hears of the district court's limited instruction and to quote the court introducing it as a statement against people interest and i understand there's some disagreement about that if it is introduces a statement as people interest you agree in that scenario it was fully admissible against client as a non testimonial stamey as people interest and so this issue goes away this issue exists only if it was introduced for the saw purpose of being a statement of a party opponent i think  strategically smart to say yes to that because the district court said as an alternative i'm going to let it end under statement of parliament and i think it's probably true let me let me give you a potentially let me ask if you have a different argument do you think the government has abandoned the argument that it was emitted under eight or four b three absolutely tell me why it's because they're because one we made an argument in our group saying didn't say where you're banned in the other one they basically wanted to defend the one ground which they thought was the stronger and i think their point of view and i think if it were wrong and i think the government to doing that because of the record and what the district court how the district court changed course in the in the trial from going from eight o three men if they stood up and and the district court ruled on two different bases in the courts as well of the government says we don't have to argue the nd basis because st basis is enough think by the time the judge is making a ruling that this is admissible and during the break i will find we're in the record that the district court itself that well it would make any difference under my question because my question is only whether there was a waiter in answering make one of them and they're sophisticated party that i think what you're trying to guess is in that scenario that that would be abandoned yes and i would say that if there if that's not the case then we would go back to our  brief that i didn't address in the reply because they switched horses go back to my brief or that or thank you greg tell us real quickly what's wrong with the limiting instructions i would say that the reason limiting instruction was not affected here is the government's closing argument in which the government would say don't think of a pink elephant in other words everybody is obviously going to think of that they said well you can't use this against spence and co let me tell you something about brown and then goes and explains how that means benson's guilty because he's a boston ok thank you were speaking about this part of this particular incident this homicide mr wallace stated that he just that he was just a thief and that this particular incident was supposed to be a burglary then mr kent describes the right right mr wallace it is was is the one who's doing the call it right this is this is before anybody's been indicted this is years before this is where it's unsolved and he says it's brown's car and he says it's brown scar so in the nd call mr wallace is seeking to cooperate and says essentially i was there but it was planned to be a burglary not a homicide and then detective can specifically says they haven't i told him that i couldn't make any promises and i asked him which vehicle meaning he and the others that they took to this incident he stated that they took brian brown struck and then the question was when you say this incident where you're talking about  alleged confession to a another person on the street not to a law enforcement officer anything the other evidence against him was that he allegedly confessed to another drug dealer on the street  was it nonetheless harmless beyond a reasonable doubt i would submit that well it has to implicate on its face yes and so we could debate whether or not it's testimonial here and that's a good i think law review question here i mean obviously this is not custodial situation so voluntary statement by this individual was assumed that it was testimony on their brewton the statement has to on its face implicate the defendant here on his state on its face all it says which is we took brian brown's truck it doesn't say brown said we could take it it doesn't say brown was with us doesn't say brown even knew about it so how does that implicated mr brown on its face your honor two things one factual and one legal factually essentially says we have a group of us women committed a crime together and we took brian straw i would say on its face the only way to that that's not an implication that it was with bryant is you can is a contortion today and get other information to show that he wasn't but i would submit that if you say we went to the concert together the group of us and we took  you're saying that you with me and other people might know this early it's not that's not what's in the in the discussion here with the text of there isn't anything about where brown was slow and then legally your honor what i would note is that all of the cases that the government cites for this proposition that it has to expressly in and of itself incriminate the defendant are redaction cases where the whole point of it is there are cases in which the judge  avoid proven tool that co defendants name alid and stuck in you know some other person and then through a series of inferences it the jury might be able to infer that that references that my reason for knowing that all the other case in our reaction cases is to recognize that when the course speaks to the issue of is there an inference it's talking about where they never use the name but can you get back to i don't admit this is a case where they initially appellate counsel and then came in later we raised two specific issues with respect to mr wallace it touched upon the some of the other argument we've zeroed in directly on statements that were made or testimony by witnesses that things a lot of time on from the heat of the moment but i think the court was exactly right at the appendix six hundred and fifty two the united states understands the nature of the objection and your case will rise or fall on whether the court is right or wrong the court believes it's right in this room with me to have a position and we've stated right here on the record now and i cite that because i think it's important at the drop trial judge in the best position to recognize as i understood of the violent nature of this evidence do but i have serious questions about the application of that exception in this case it's unclear to me from the record that the court considered that the court considered totally totally get that right or i'm asking the it says i want to go back to the original reason and the original reason argued it seems to me from the record was a go for b three was in addition got it right for the right reason but then it seems that now we're arguing about it a different reason with barry and rivera too but this seems to be to me is the most important questions or don't matter which witness we're talking about well i think there are some questions about whether some of those some of that stuff when testimony was truly against interest it gets hazy it gets a little bit clear less sharp for example with turner where he were well now this is benson talking to turn so that i would concur that the position that i take it simply this at the trial i believe the judge treated it as hearsay i thought the government made the comment i'm not sure how strong that comment was how much they put it into the record but again we felt your honor that it was it should have been it was prejudicial and limited instruction do we have cases where we morning your honour's it in iran for the governments may please the court joint trials serve critical and beneficial role in the criminal justice system and i think this is an example of one in which the district court acted able to administer a factually com where specific london instructions given to jury guidance on how to use particular evidence and i think we don't see a reversible error in can you start with my question and then come back to where you were i read although i agree there is some discussion of douglas whose testimony i understand you suggested a compromise although it seems like your compromise was diluted was the limiting instruction and not the grounds for admission it right i mean you talk about it's ok to use a limiting have to think really hard about whether we can consider an argument that you've abandoned have you amendment and if so can we ignore that government's abandonment of the argument your honor i don't think we've abandoned it in the sense of we court certainly had enough evidence and didn't decide it to fifty six dollars that it would be sufficiently corroborative at it for i think the place that comes in this analysis would be under a harmlessness kind of analysis that even if for some reason the jury we didn't abandon it because in the factual and procedural section we describe what the district court did mean seem to me under rule twenty eight dollars you've got to put forward the argument now let me donate it to whatever it is abandon the argument as to loose with were we left with then i think you're left with the admission of it against brown only the existence of the reports limiting instruction and the lack of a sufficient reason under this or and lend to assume that the jury disregarded that structure then and under the testing greer is saying that it would not only have to be an overwhelming probability that the jury would disregard a specific limited instruction but that it would have to have a devastating effect on the defendant's case i think that standard just simply can't be met in the case where the defendant's own statements admitting to the presence of his truck at the robbery have been admitted against him and other defendants individual statements admitting their own participated but it wasn't the same kind of i went into the house and it was we went down to virginia and ben's and i had made him go in with hillman from boston to for junior and then says that guy did the robbery yeah i those statements the government's case in clothing was argued against specific defendants using their own statements against them with other generally and most of all evidence that was available to so starting if i can transition tha mr brand's argument about the government's use of the statements in closing i don't think this is a situation in which the limiting instruction is overcome because the government's ability to use generally admissible evidence about other co defendants to argue one co defend officers he knew for the sake of argument except that it was testimonial and that it was incriminating and therefore improper and talk to me about why  talk to me if if i found that to be an error it helped me walk me through the sort of harmless beyond a reasonable doubt i mean this is the sort of challenge you've got that it's harmless beyond a reasonable doubt in light of that so the only person mentioned in wallace's testimony is brown in reference to brown's truck correct and i think brown's own statement at j six hundred and seventy is that we can't use my truck because it was used in iraq or that didn't go as planned so the exact if that's all you had i suggest you would agree that that wouldn't be harmless beyond a reasonable doubt you've got to put that in context of the other evidence right yeah just the fact that he made a inculpatory statement wouldn't by me the phone evidence his statement the phone evidence showing communications and at least some of them in the area what else am i should i be looking at in determining whether  get about that so the evidence showed that there were two hundred and forty caliber firearms used in the robbery and the murder and that brown is later caught on a gun enforcement wire were those guns recovered they were recovered from informant and they were recovered i believe yes the police officers used undercover officer did they bought the guns from browns i believe so our needs are i believe they bought them from the person  ground after having a wiretap phone conversation of brown talking to this person about is the wiretap was not the tap tap what known the informant it was on the actual gun trader in new york correct thank you suing for the sake of argument the court find that the government has abandoned that this argument in the standard is harmlessness would ask the court to review our and without that testimony was submit that it would show that this was not harmless this was the government's case and that maybe don't you i mean you got the hardest case i mean you had a client i understand that but you know your guy's d n a is at the scene your gas you know talking about this you know like it's his kids birthday right and he's going around talking to everybody about what he's done is d n a found there i mean if we got to harmless with your guy you guys seem to be the hardest of them to to get over know i'll admit it's the hardest i'll submit that it's still harder and i would say that the government's closing argument helps demonstrate that point i would further submit that the government is incorrect that this court would be making some sort of incredible decision to find out in this case the government's closing arguments a limited the power of the jury instruction it is not necessary to go farther than say mr brown  about mr brown and that's admissible against mr brown and not go farther and say things after you say they mr brown and his friends didn't have guns  say that douglas attests to me establish that brown was down there and then immediately say after that and that's the boston boys and we know who the boston boys are after the government's taken so much pains to get through douglas who the boston but the boston boys are involved it's the government telling the jury mr benson's one of them that's the reason for these thirty three instances in that was ever screen something facially incriminating incriminating by result of other evidence yes your honor i love that question because the difference between the cases that talk about well evidence comes later if it were only later we found out that benson happened to be from boston that might be one thing this is not that case this is not a case where the that has to be some stretch to find out later that number one what what what austin or what men tells us is if this was the very st testimony in the trial we're being called a tory and the answer is no because we don't know where anybody is from it that that's true but i would compare it to the other cases that talk about what it takes to link that and they're not close to this when the government's case against benson is that he's aust all right thank you your honor thank you mr grant m that accurately shows that and i and i summarize it in the context of this normal harmless error but of course in the brutal attacks that is beyond a reasonable doubt and i would submit if you read those that summary it shows that this is not our us beyond a reasonable doubt thousand and thirteen and it's whether a reasonable person in the clarence position would have expected his statements to be used at trial that is whether the declarant would have expected or intended to quote bear witness against another in a later precisely to cooperate in an investigation hoping that it goes to court i mean the whole way in with that see the same whether he was a codefendant or very just an eyewitness rights of an eyewitness calls in and says hey i just saw these two guys run out of the bank that be testimonial in the same way well not in this not necessarily in that well it could be yes but what i'm saying is even more so even more than that i think that is testimonial but in these federal cases  they've reached out to the police precisely because they want to bear witness against other people that's why they're doing it to bear witness so that they can get a cut in iraq and they're trying to deflect from themselves agrees deflecting but he's deflecting by saying let me bear witness against this other guy in court so i would submit it is testimonial it's not beyond a reasonable doubt armless and i would suggest if you look at the richard the great case it really helps emphasize of imus and his this comment that the whole issue of whether or not the inference deals with when they don't actually name the person in this case he is named and it's clear that any juror hearing that would say that who is his conversation with brown that he was upset that mark wallace brought in boston down there to mask the link up i don't see how a court can find that that was not that there wasn't the potential for the jury to be highly paid by that now the rest of the case against mr wallace was pretty weak and i understand that because i want to just remark talked about while i was just stating to the officer to deflect what he actually said was i'm a thief i'm basically i commit burglaries i'm not a robber or a i'm not a birth and as we all know the case law very clear on this particular victim specific statutory that it was a it's charges of murder but it's in the context of the use of a firearm in the commission of a crime of violence or drug crafting in the law in after the con that what we just hypothetically if the benson came out with waving a gun and said i got in my garden and put a gun in his belt get in the car and tell us that now that's  you don't know anything about it in which draw it didn't say all that he didn't object in other words if there was evidence of his object you know withdrawing that's one thing but i thought there was some case law suggests that if he continued and of course he did he took them to the bus station and put him on an earlier bus at boston which is a continuing participation scheme and if he withdrew it i'm i'm washing my hands of this i've nothing to do with this don't get in the car that's think it's so outside of what happened i think we're coming to what happened as he said in the car and there are six shots fired and of course he hears the six shots and then he drives them to the pa station ahead of schedule so the hypothetical isn't fa doing something afterwards i don't think that leap frog him into being a principal before the fact is some of you that the law on this offense the elements require that advance knowledge of the file that's very important and without that one no matter what happened