is the court this is the case about a car chase in which the driver got out ran and wasn't caught this was a highly contested trial about the identity of that driver which resulted in the jury declaring itself deadlocked on the second day and after several hours of deliberations but the trial court made two serious errors the first a janks air prevented the defense from adequately confronting a parole officer is highly inflammatory testimony with her prior reports the second a due process there where the court allowed the prosecution to impeach mr bailey with several prior convictions many of them for distribution of marijuana conduct identical to that which the driver of the car was engaged in that day general those self serving statements should not come in and the united states quite properly could have objected and kept it out but the judge let it in for rule of completeness bailey wanted the expulsion atory information so why couldn't he then be impeached with these part convictions which are clearly admissible as a means to attack credibility the government had a choice to make it could have brought in all of mr bailey's conversations with mikey to smith the witness or none of it but under the rules of evidence they can't cherry pick the prosecution tried to manipulate the system by only putting in the part it liked and the court quite properly ruled that under the rule of completeness the jury in fairness should hear the rest of the conversation including the part that the defense was forced to introduce him but the problem is that it's a risk reward situation and you put  take had taken the stand right i disagree your honor the government set up this situation artificially by only putting in the part of the statement you liked if you approve this stratagem by the government where you're going to draw the line  how bad does the prosecution selective redaction have to get before it does become a due process violation let me give you a hypothetical what if after arrest in a post arrest interrogation a defendant said you know the word on the street is that i'm the one who killed her but that's not true and a trial the prosecution puts up the agent to say defendant said i'm the one who killed her clearly that's a gross misrepresentation of what the defendant said with the full context of the rest of his statement  cherry picking part of it that they like and then if with the trial judge it minutes on the defendant's motion the rest of the statement and his judge par pointed out it would be entirely proper to point for the government to attack the credibility of the statement because was exculpatory but not by impeaching the defendant as a declarant when only because the completeness the rest should come in under rule of say one of six and correspondingly in the common lovers and applies to oral statements and that means the trial court said in fairness the jury ought to hear the rest of us that means that the prosecution left now part of the statement that the trial court thought the jury ought to hear if that deliberate stratagem can be rewarded by allowing impeachment which otherwise would not be allowed to occur that's a due process violation and it's right here is the place to draw the line because on the application of the rule of completeness it's clear that the court is saying in fairness they ought to hear the rest of the statement or or any other statement  base that's a violation of due process that it's a constitution correct because otherwise the prosecution could mince any part of a defendant's statement and force the defendant into an the constitution that's not and forth with a rule that applies a lot of authorities the court has to apply and there's an order of hierarchy in the constitution obviously comes first this was a due process violation and therefore the court can see that this application of those rules in a technical manner resulted in a violation of mr bailey's rights to process in a fair trial and that doesn't there are many times when there are conflicts between different authorities that doesn't violate any in principle of interpretation for this  read their argument properly you're precluded from attacking the district court's evidence re ruling on the basis of six or nine  yes your honor that that's an incorrect argument i objected this was in project improper impeachment as you noted just because i didn't say the magic word six and nine doesn't mean that the court in the prosecution weren't well on notice of what the issue here was and what test had to be properly applied to rule on it the only type of impeachment issue was impeachment with prior convictions the government in pretrial briefing had also raised the issue of six o nine so everyone was on notice and the defendant objected improper impeachment it's not the law that the defense has to spell out every detail of the tast the trial court is then required to apply i tend to agree but the only issue this question is that  in atlanta to do the balancing under six o nine de novo or should we read the record to similarly understand that the district judge did the balancing even though he didn't  the rule or what what should we be doing what standard should we be employing to resolve that issue the court should find that it was abuse of discretion not to apply the mandatory stand balancing test at honor this court has said it's mandatory not that i've seen it even if it were examined under a plane or a standard judge joe flat this error was clear because he didn't do any analysis on the record he was also playing because the law says it's mandatory and it affected mr bailey substantial rights because he was impeached with multiple prior convictions several of them for conduct his credibility as i read this record was in this case from the beginning the  seeds were planted throughout all of the government witnesses to show that reggie or somebody else drove this car reggie but those those are just little bits bits but but then we got interview with the idea but none of that evidence about the other many other people who could have been driving the car depended on statements from the defendant so all i understand that i'm just i'm just making the observation that somebody else did it absolutely as seated throughout the course of the trial  yes your honor and that's one of the many reasons why the government hasn't proved that these errors were harmless beyond a reasonable doubt because there was such a lot of evidence that someone else could have been driving the car on the day in question the government's case had significant issues an important piece of prosecution it evidence was the eyewitness testimony of officer parker but his credibility and reliability were undercut he only got two fleeting glances at the driver one of them from over four hundred feet away through a rain streaked windshield he only looked at mr bailey's photo identification card found in his wallet in the car never did a photo or actual lineup to see if he really could identify mr bale later in a park ask you i mean you may have a good or human that isn't funny harmless here not at all because one indication of how close this case was is as i said after several hours the jury deadlocked in part of the reason i suspect they did that is not only was  eyewitness identification weak but there was no forensic evidence from the government fingerprints found in the car on plastic bags were found not to come from mr bailey but from other people and the defense put up evidence that reginald boyce and many other people could have been driving the car on that day the government's case had significant problems i have a question going back to the plane there are issues with regard to rule  with regard to the issue that we just finished talking about with regard to the prior convictions i think it's first important to point out that this was not a case regarding setting up the defendant to put these statements and or cherry picking this was a completely different statement even the defendant admits in his brief that this statement was made on the next day in a different conversation under different circumstances which is why the government objected to it coming in as self serving hearsay statements in fact we vigorously objected in our brief and at a hearing so this was not a situation where the government set the defendant up in order to then turn around and impeach him that some of your position was before news now that the rule of completeness and not required that is correct but even if that was a correct ruling that the rule of completeness didn't require it the law is clear that the government is committed to impeach the defendant when he brings in this self serving hearsay statement there's no rule or case law that says if a statement comes in under the rule of completeness then there's before immunity from impeachment there's nothing that says that in any of the cases cited by the defendant and i have done thorough research to see if there's anything out there in any other circuits that say if hearsay statement is brought in by the defendant that it cannot be impeached by the that's correct and he had already stipulated to being a felon so the jury knew that that's correct yes you know so essentially there and the defendant was charged with being a felon in possession of firearm so the jury knew that he had been previously convicted so when they heard about this two thousand and eleven conviction they could have easily assumed that that's the conviction for which he was a he was a convicted felon in fact the defendant in the indictment the indictment listed seven pyar felony convictions be redacted that and only impeached him with one of the felony convictions listed on the indictment and then the other fellow in conviction that came man him so he can have i don't think it's necessary to remand in this case based on the overwhelming evidence of guilt i think after because the defendant did not object on this crime he did not alert the court to the fact that this should be this balancing test and i understand that the case law talks about this being a mandatory test but there was no specific objection on that ground therefore the district court did not conduct that test rig knowledge of that in value even under those circumstances the abuse and there was no abuse of discretion here because any error was harmless based on the overwhelming evidence of guilt and i think it's important to fight point out that in this argument the defendant even though he in the laying out the facts tries to indicate that the evidence wasn't that strong in this argument the defendant points out all the strengths of the government's case and states that because the government's case was so strong it wasn't really necessary to emp a under base of this question you can consider it harmless error and on the plane error there was no infringement on the defendant's substantial rights because there was no miscarriage of justice here there was no prejudice to the defendant the evidence was quite straightforward under the circumstances and pretty overwhelming the police officer saw the defendant driving the car they locked eyes in fact in which the police officers saw his eyes popped in an o no i've noticed you and noticed me and then in this chase when the defendant got out and started running the police officer was driving toward him and saw him then found his wallet in the car immediately noticed that the person pictured on the idea in the is the same person he just locked eyes with and we have his girlfriend testifying that the defendant called her in the hospital and told her i wrecked the car now of course after he had some time to think about it after he slept on it after he realized it essentially just admitted what he had done then he calls her and tells her oh well i'd i'd known to to someone else but even under those circumstances he said here are the details of what happened court were to find that the prejudicial barrier read the post of a fat even under those circumstances the guilt was so overwhelming it was harmless but i think because of what we outlined in i believe the prejudicial effect here was mitigated to the the court even though it may not have explicitly conducted the the balancing test on the record it had done so in other circumstances throughout this trial with regard to four four b evidence it discussed that and it came limiting instructions under those circumstances in this case because we had briefed that issue and had argued the issue it's very likely that the court didn't feel the need to go into any further discussion and a the defendant could have at that time either file a written response by pointing out that there was issues with the balancing test at the or law game and in which we argued regarding this issue at that time the defendant could have pointed probative value and prejudicial effect and then when we actually presented the witness the defendant at that time could have argued that there were issues with regard to the balancing test so there were multiple opportunities for the defendant in this case to raise this issue and he did not but what the court did is it had the briefing it had the arguments of counsel he knew that this issue was coming up and it ensured that any prejudice would be mitigated by g the quick the case that you pointed out the robinson case i've actually not seen that specific case on a but what i have seen is the cases that we have here in the eleventh circuit the preston case for example talks about this on the record finding but what i've seen in other cases in tom's in terms of the plain error standard is that you need to make a specific objection to the court so that the court has an opportunity to correct any er you stay silent on an issue then when it's time for appeal the appellate court is dealing with it without having the benefit of understanding where the district court would have ruled and how to come out on that issue so based on that you know under those circumstances i think it makes sense that the fifth circuit would have not come out with a good in this robinson case that you've talked about indicating that yes there should be a clear objection to give the district  under these circumstances where we had other issues come up with regard to four four b and the court made a ruling in those circumstances and the district the defendant had an opportunity to do just that with regard to this how did the district judge know that proffer to the court the circumstances of what happened and that the agency had not giving us already to turn over these notes and this was a very difficult position for the government to be in and that the agency was telling the government you cannot disclose these there are these procedures that need to be followed and so what so what the government did was ok we're going to take all the information that you have provided that you say we can turn over the information just not the wrong notes themselves and we're going to put that in a report and we're going to type that up and turn that over in addition i do as a defense objection a trial the judge didn't look at the summaries and compare them with the notes or standard he never said take a look at this report read it and compare it to the testimony he never said order the government to turn over these notes so that you can do it in camera view none of that happened but we turned over not only the report itself which was a summary of what we had been told from the supervisor and we also turned over in discovery all of the other undermined documents that the witness testified about she testified about this police report that the brother had provided about the defendant allegedly shooting their father all of that information was actually turned over to the defendant months before trial the government itself never eventually at the time initially we were not eventually we were sent to but it was not essentially authorised for us to receive that and once that happened the agency contacted us and said you cannot turn these over when we first found out about the notes and when we wrote the report we did not have them which is what we conveyed to the court someone in the agency after we issued a subpoena actually saying we need these notes and so they said you can't get them then we subpoenaed the agency and they said you still can't get them someone else sent them to us believing that we were able to get them pursuant to the subpoena the agency contacted us and said no you cannot and that is why me explaining to the court we are not in a position based on what we've be told from the agencies to turn this information over but what i ensured and reacted in good faith in fact we turned over this information before the testimony which we're not required to do so in good faith we said let's make sure we type up this information that received let's turn that all over in a written statement let's make sure all of the underlying police reports that the witness testified about has been disclosed they had been disclosed in january of that year and the trial was in july so the defendant had the jencks that is to give the defendant the opportunity to properly cross examine the witness and in this case the defendant had everything that he needed to adequately cross examine the witnesses and he chose not to do so and based on that your honor there was no abuse of discussion there was no violation of the junks act and the court properly ruled at the trial that that was  let me start by responding to some of these points on the on the jinx error it is simply wrong that the defense had the relevant details and these are not notes these are reports that the witness wrote about the very interactions she testified to and the government had those and refused to turn them over and knew in advance that it was not going to turn them over and comply with james and nevertheless call the witness and let her testify on direct how would it make a difference we don't know the government's burden here is to prove beyond a reasonable doubt that it wouldn't have made a difference and they haven't done that and they've precluded this court from reviewing the reports by never submitting them into the record and never moving  in the original janks case the supreme court didn't have the reports and simply reversed not remitted not evaluated just reversed because it is such a low bar for those reports to likely be useful for the defense on cross examination the court said the omission from the reports of facts related at the trial or a contrast in emphasis excuse me up on the same facts even a different order of treatment are also relevant to the cross examining process so simply reversed because we don't have to prove there's a contradiction that's the whole point of the jinx act the defense should have the opportunity to see those reports and decide what is useful and how to use it  responding to a couple points on the improper impeachment the government at trial and here has made a lot of the fact that mr bailey additional statement that we brought in occurred on a different day that doesn't mean make the trial court's ruling under the rule of completeness incorrect rule one of six says the court can lead in any other part or any other writing or recorded statement it doesn't have to be the same day in the same location even necessarily by the same person it gives the child or great discretion in here the court exercised that to let in another part of his statement and that was the right thing to do here because of the contradictions in white he does smith's testimony on direct she was asked by the prosecution twice what they knew it was related because that's why they filed a pretrial motion trying to exclude it they knew it was that issue and it was closely tied to the same subject matter and the trial court who has the discretion and has the grounds i d u disagreed  come in and i think that is the most clear indications that this was related and it was a strategic decision by the prosecution to leave out this crucial part of his statement which added proper context