probable cause that's that's totally misunderstood them yes your honor you are because the government's brief isn't actually addressing judges eagles ruling at all it's actually asking you to affirm judge anderson's violate the fourth amendment in order for the government to to address that the government would have needed to either demonstrate based on the factual findings by judge  that there was probable cause or that the plainview doctrine applies or it would have needed to demonstrate that there was clear error and judge that it was factual findings the government doesn't do either in fact it asks this court to read the trial transcript to judge legal reached numerous factual findings there and he said a whole lot but i don't know that anything is in the nature of a new set of factual findings he wasn't the judge who actually heard any of the evidence he didn't withdraw the credibility the finding that  judge anderson had entered into with respect to the complaining witness and i mean it's just it's a difference of opinion between two district judges and whether the and eventually facts warranted suppression or not  additional post trial suppression hearing in which he actually made a credibility determination after hearing sergeant our analyses testimony for himself and he made certain findings about sardar announced his testimony and his credit his credibility in particular he said that he talked at great length about having reviewed carefully and taken into consideration the entire transcript of the original suppression hearing and the ruling rights he considers he considers the trial suppression hearing testimony as well as the trial transcript and he came to his own conclusions about sergeant are now ski's testimony and and his conclusions were that the testimony was inconsistent unclear any but i thought the basis of his suppression ruling was that that was not discrepancies in the testimony but the fact that the gun case could have been something else it was indistinctive i think was his word or not not distinctive enough to be a gun case and therefore suppression was warranted that was the basis of his ruling and if that's correct that's correct your honor and i agree with him on that to sit on that aspect not like if if the victim's complaint provided probable cause to believe that there was a gun around that ruling use your role that's correct but then the complaint did not provide public cause to search mr charles charles his vehicle in particular here to give somebody shows i saw x with a gun and the police stop actually don't find a gun on his person doesn't that lead to a reasonable belief you need to know that this is the person that you're looking for in the cases that the government sites to particular arrested on probable cause on the basis of one eyewitnesses description all the time and we keep hearing arguments that in order to make in a restaurant search on probable cause the police have to conduct an investigation and we keep rejecting that you just made the same they had to make a border investigation argument again it's not the way the a photograph of mr charles somewhere or in the record another is and testimony about who's who of mostly they're there if you look to for example the the scent pre sentencing report describes his ethnicity and to address your point about the car there was actually no description of the vehicle in the dispatch calls are now asking six recalled that the dispatch the dispatch had provided description of the vehicle but then if you look to the actual dispatch call there's no description of a vehicle at all let alone a vehicle that matched that match mr charles this car it's the only thing about that that's mentioned in the report from dispatch is that there was a man with a gun that's it and the physical description of the ma of a gun at a trial on a gun charge can't be harmless and it almost goes without saying if you're if you're being convicted of a of his illegal possession of an object and that object is admitted trial it's not harmless and improperly admitted evidence is not harmless where there's a reasonable possibility that it might have contributed to the conviction and here in here in the seventh circuit we have the additional requirement that other evidence of guilt must be overwhelming and constitutional violation cannot be upheld unless the harmless error is unless it's proven that's harmless beyond a reasonable doubt and that's when the burden is on the government judge zagel apply a different standard when determining harmless error he asked whether judge andersen statement in his ruling was a factual finding of it or dicta but that's not the standard and whether or not that was a factual finding or dicked doesn't demonstrate whether this was harmless or not because regardless of his finding there's still a reasonable possibility that the gun in the other physical evidence might have contributed to his ruling we know that it had independent value in verifying the underlying possession charge but we also know that there's a reasonable possibility that it might have contributed to his assessment of the  witnesses credibility because it corroborated her story and on that basis we cannot find this was harmless error well judge anderson's open to ruling finding your client guilty by saying it seems to me i believe mr charles that ms summarized the complaining witness testified truthfully and that she did see a gun in your possession that alone would find you guilty of the crime and then he went on to consider the rest of the facts that's correct your honor but  insistent when making a remark like that we can't we do not just for a lie on the on the remark without looking to the remaining evidence in the record supporting guilt just because this is a bench trial doesn't mean that we forget about the harmless error standard the harmless error standard requires the other evidence in the record be overwhelming and if you look to a similar case the government cites united states v levy the court the district court did make a similar a similar remark albeit it was a bit more forceful than judge anderson's remark but the court did the seventh circuit didn't rest on the on the insistent remark alone it looks to the remaining evidence in the record and said the remaining evidence strongly corroborates this strongly evidences guilt and therefore the district court statements are well founded and we can't just take these statements at face value because if we did in a bench trial every time there the challenging decision about the admissibility of a knob of a piece of evidence a judge could say well i'm i'm admitting the evidence but i would have ruled that i would have ruled the same way regardless and then their decision would be a pool appeal proof in this case because we use the overwhelming other rec other evidence of guilt standard we can actually use this as a failsafe to make sure that that the actual remarks are well founded and i thought your basic point was that summarizes testimony  pretty shaky to begin with and without corroboration from the actual flaming it would go on and it would be pretty hard to credit her beyond a reasonable doubt that's correct so if we in this case if we look to the remaining record to see what other evidence there is of guilt all we have is some shaky testimony from an eyewitness that she thought she saw a silver like handle and then we have testimony from the responding officer directly undermining that saying that he observed mr charles with a ball in the side and when he patted him down it was revealed to be a cell phone clip and on that basis that scant record we cannot find there's overwhelming evidence of guilt aside from the guy who did take you back to the united states against ross question probable cause to search the car is there anything else you want to add about the united in the united states the ross is another example where there was a there was an indication where they were the police officer was not just responding to a physical description of the person knew that the person of the motion for a new trial and we would remind you that that in failing to address mr charles's argument of excusable neglect the district court failed to exercise its discretion with regard to that particular finding and therefore the proper course would be to vacate and remand for a new trial determined that a little unclear on the chronology here judge  allowed the motion for the new trial and i actually heard it that's correct and so why are we fighting over whether he did or didn't do that because what  hearing we should conduct the suppression hearing for a year afterwards and then at the tail end after suppressing the gun and the other evidence he says i'm inclined to find and it's also one time and it was at that point th more than four years after filing your bill for if it's correct or excuse me almost a little over three years or four years four years a steven block i represent the united states this court should affirm the denial of motion for new trial not only because it was untimely by over two and a half years but because the motion to suppress the firearm lacked merit and the evidence was properly admitted at trial the evidence was properly admitted for several reasons the first of which was that there was absolutely probable cause to search the defendant's vehicle based on this tell totality of circumstances known to the officer at the time in addition the gun case was in plain view on the front seat of defendant's car and to the officer it was immediately apparent that that gun case could be connected to criminal activity based on what he already knew in responding to the call third the evidence would be admitted under the inevitable discovery doctrine even judge daigle who disagreed with the admission of the weapon this is the first i've heard of inevitable discovery that's better for you just arguing there's a probable cause basis for the search oh well let's not go in the direction of inevitable discovery i don't think you are the judge we did would you agree that there was probable cause for the search based on everything the officer knew at the time can i ask you to help me connect some dots here since we are now so many years later after heller after mcdonald after subsequent litigation about carrying guns  probably was there did that did the officer receive any indication in the dispatch that the witness had been threatened with a gun yes the dispatch call this referred that that she was scared  that there's a man and that's a little different a man in the hall today and say i'm scared of somebody who's carrying a gun into a mcdonald's restaurant or something of that sort right i have whether i've been threatened or not the the call said that it was a woman's calling it was miss summarize they gave the address it said that she was in the alley she couldn't get out the man had a gun she was scared and gave a description ok i think there's so no threat right i think one communicated well yeah ok and then so is the premise here that the mere possession at that time was a crime for just about everybody within the city limits no judge i think the officer responding to was the woman felt threatened i think it's reasonable for the officer to believe that there was perhaps an assault in progress if she felt threatened in described a man with a gun of so you don't think there was any indication of a crime without knowing it well i mean ok there's a man with a gun somebody scared if that happens today is that probable cause to search i think it would depend more on the description in the call in this particular call at the time i think it was readily a reasonable for the officer to assume that someone was being threatened with a gun based on the or my understanding of a lot of time with yes but in this case there was something that one of course what led to mcdonnell the very fact that chicago made it illegal to have a gun within city limits and at the time judge it was legal but the officer me more than that the officer responding to a specific call and regards the description well you know in wisconsin at least people got a constitutional right to do what mr charles was doing at least except for his felony convictions i just i don't know the law using wisconsin yep and so i don't know i can't state i know the line wisconsin on this issue but at the time the officers responding because he reasonably believed that the victim was being and she didn't just say i see a man with a gun she said that she's scared she's scared correct now that's you know our in our post heller post for example world that's not nearly enough to arrest basis nothing more and no judge i believe the basis was the officers responding because you knew more than your possession do you do you think you want us to issue a decision to a day that says if somebody calls and says there's a man with a gun i'm afraid of him but that's probable cause to frisk him search him searches car that's enough but was it was more than just being threatened she described in the call the circumstance that she was in the alley she couldn't back up he was yelling at her she was afraid it was more detail than simply a man with a gun and when the officer response to the scene at that point what he sees responded very quickly he was in the neighborhood he was there within a matter of moments and what he saw then closely matched what had been the call the description the man was a light skinned african american ball wearing a blue jeans and a plaid shirt that was a description now it turns out the man i believe was of hispanic background but the restrictions per pretty pretty solid when the man gets there the officer gets or seconds later and he sees exactly that man coming out of a car that is parked sort of askew into a busy street and howard at that point the officer did conduct a brief investigation he spoke with the victim and said is that the man who threatened you with the gun she said yes once the officer was  inside however even if the court was to find there was not probable cause we believe the search was still valid because when the officer walked over he saw a gun case in plain view on the front seat the officer testified at the suppression hearing bench knows a lot about guns too i've heard that he does judge yes and he judged a lot about police work yesterday judge daigle believe the case was not that distinctive we disagreed with that with  rationale yet but we have a finding on that point it is for our purposes not that distinctive judge we also have judge anderson saying that it was it was distinctive and we do disagree with  timeliness what happened to this case and what i'm not the court has its own responsibilities and when was mr charles taken into custody mr charles was indicted in october two thousand and eight he would have been taken into custody by the by the state authorities sometime shortly before that i don't recall the exact date your are it was shortly before that the federal indictment was in late october of two thousand yes and he's been in custody ever since yes  at the very least the fact that nobody was trying to get a sentencing is very troubling intends to corroborate his argument now that he was effectively abandoned by his post stroke and so i don't believe that it does corroborate that judge the how does something how does somebody languish for more than four years between a finding of guilt and sentencing i think with the record reflects in this case your honor is mr charles had five separate sets of were the prosecutor and you've got a guy you've got you've got a guilty finding and no sentencing for more than four years it's very troubling and the judge i agree the government would like to have gotten this case sentenced sooner there's no doubt about that but when it comes back to whether the defendant had a fair trial whether the gun was properly admitted and whether his motion was untimely we don't believe that those arguments are meritorious emotions what is untimely do we have any record to that effect that they filed the motion for no no other whether there was a court central vacation i don't know how one addresses that one way or the other without holding an evidentiary hearing at which  bring in the waters and ask them to explain their action or inaction it just there's nothing i gather that didn't happen no there's nothing in the record to explicitly state what was in the mind of counsel i agree with that but i point was simply that within the deadline counsel did file a post trial motion and they chose they did file one and not the other and then there was new counsel and extended deadline and nowhere action kills no action with regard sentencing or doing anything right again just i do can only look at the docket i would not have course be privy to what counsel may have been doing in his conversations with the defendant but after mr macha came on the case defendant missed the deadline ok there are other reasons and other issues that we can take up but that one would have a well full of savage irony to it that i think would be  know it's also a little unorthodox in the way it was handled and to the extent that there's there's some grasping at untimely n'est here he was sort of an afterthought by judge saying well you know after he heard the motion granted suppression paper judge the the motion for a motion to suppress was filed eleven months after the deadline that this up i the court the correct show there there are two options one is that motion could be denied is on time only the other option to sit here and could be held before trial you know as it happens you you seem to be happy that the judge denied the motion but the government regularly insists that these be before trials for that you don't have double jeopardy problems everybody seems to have swept through a whole lot of problems in this case judge regard to the motion to suppress file before before trial it was filed the week before trial  s attorney's manual you will see that is recommended procedure when a judge refuses to hold a pretrial suppression hearing the potential double jeopardy i just wanted to remind the court first of all that we as appellate counsel agree that the record here is very troubling and i'd like to just kind of point your attention really briefly to the probable cause determination what we have here based on the finding this is a man on the street not acting suspiciously with a partial match of the description and no confirmation that this was the guy that they were looking for and based on those facts there's only a reasonable description earth reason it's reasonable suspicion excuse me based on articulable facts there was this is a stop and frisk at best and when pat down revealed that there was no gun on his person this dispelled any reasonable suspicion that mr charles was the man with the gun and dispelled any any belief that a reasonable trustworthiness of the eyewitness that there was a gun at all to do the officer talk to summarize the officer recall the officer testify that he did and miss summarized testified numerous times throughout the trial that she did not speak with the officer that at no point did she identify so who made a