courts are or are well aware one of the most precious and fundamental principles of a criminal trial is the presumption of innocence and what the trial court in this case failed to hold his obligation in preserving that fundamental principle when he erroneous lee admitted a booking photo which this court in many courts across the country have said they strongly disfavor the admission of such embarrassing  and humiliating unnecessary photographs in this case it was extremely prejudicial in the fact that it was an identification case and there was no other independent witnesses to make any identifications this court has said that booking photos are a vivid symbol of criminal accusations conveying guilt to the viewer they strongly disfavor the use of booking photos around the country the th circuit has condemned the practice not for a booking photo issue are you familiar with the us behinds case i'm not so even in that case which was from the score from one thousand nine hundred and two we set out a three part test for whether booking photos would be would be permitted and that is how like you're not familiar with that test we haven't we haven't applied it a lot since then or perhaps that all the other circuits have some wondering why we're not bound to apply that test i can't speak to the three part test and respectfully i'm not familiar with it ok i can tell you the use in this particular case in my opinion raised to a prejudicial level that can't be deemed harmless it was completely unnecessary the government offered two other sets of photographs a series of driver's license photographs and a passport photo that was closer in time to the dates of the events and the booking photo as much as the district court went to say was just a photograph like any other photograph the defendant standing in front of a cell block wall and in what the government described as a jumper routinely seen the in by criminal defendants couldn't be seen any other way so getting back to what judge granted is talking about in that hines test a three part test i don't know if you want to address the different progs while you're there are as follows a demonstrable need to introduce  photographs the photographs themselves if shown to the jury do not imply that the defendant has a prior criminal record and the manner of introduction to trial did not drop particular attention to the source or implications of the photographs think collectively there certainly was no need for the photograph the government had other sources of photograph independent sources that they could use the booking photo clearly shows the source with him standing by the cell block wall close clearly shows that he was arrested for the offenses and as to the nd prong the nd prong is that the photos themselves have shown to the jury do not imply that the defendant has a prior criminal record i don't see how it could be seen any other way he's standing in what could only be described as a cell block wall in a prison and clearly conveys nothing but other than guilt so in this case it has to rise to the level of something that can't be seen as harmless because there was no other evidence no other supporting evidence in my opinion because this wasn't solely an identification case one of the reasons to the district court day was because the this photo showed dreadlocks at the time of the arrest whereas he was in court with a different hairstyle can you tell me whether or not the driver's license showed dreadlocks clearly they did that there were a series of drives last for it's show that the passport photo did as well and do we have copies of those fourteen believe the passport photo was closer to the end of twelve beginning at thirteen and the driver's license photos certainly the passport photo was closer in time the driver's license photo may have been around the same time as the  to take away some of the all the marshall information and looking information so but it unmistakably was it was a booking photo the next issue i want to get to quickly was the identification or the lack previously indicted and convicted before we went to trial in this case and the government called ms gere danno to testify that the person in the a t m photos was not you have now closed tear if now they the pierce case from this court i think is instructive on the issue the court had said that they cautioned trial courts before they allow this type of opinion evidence this type of opinion testimony into evidence but there are certain circumstances in which it will if it can be shown that there is a sufficient predicate there has to be a search and critical to the analysis is the level of familiarity  not the record is wholly insufficient to prove substantial and sustained conduct contacts with you have no terror in order to make such a identification there was no predicate laid by the government as to a close relationship with the court for missing the heintz case it was not discussed in the district court either but judge middlebrooks even though the case was not cited in his very thoughtful analysis of the request to put in the booking photo did actually apply the problems of though without necessarily understanding he was doing it st of all and i think from the court's questions in counsel's argument the most critical aspect here is a demonstrably need question and it's true we put in three photographs or we put in the driver's license photos to believe our g x twenty seven dollars and then we put it in the photographs from the passport and then we put in the booking photo and i think one of the reasons that really cannot be overstated is that mr petang has a very effectively over and over and over hammered the fact that the government had initially indicted miguel patel's brother yeven now and that as part of that that had been based on the fact of looking at  photo and as judge hall noted at the time of the trial as noted in the discussion with judge middlebrooks regarding the admission of the book of photo the defendant was cleaned up so in this case unlike i think maybe your typical case was very important that this jury have every opportunity to see the defendant and although his hair is in dre the passport photo and it's in dreads and the driver's license photo is a slightly different look and the booking photo and you have all of the original government exhibits as well but i think the other thing that's very important about this is dropping down for a moment to i believe is the rd prong is a special care that judge middlebrooks took in this case and making sure to try to eliminate any possible showing that you had an obvious booking photo and i think one of the things that's very important is you have a factual finding by judge middlebrooks because he didn't just admit it he asked to see mco tears driver's license photos and he looked at that and then he looked at the photograph of the booking photo and he specifically rejected the defense contention that it was obviously a booking photo he noted that the attire that khloe terror war in his driver's license photo he likes to be next and he had a v neck also and the the attire from the prison i think it's also significant and the th circuit case the group case that we cited in the brief makes this point it's one thing for all of us who know that a defendant is arrested and we know that it's a booking photo to look at it and say yes it's a booking photo in this case it's a blue shirt it's government exhibit sixty nine i apologize i i was the st time i've ever inserted a photograph in a brief and i forgot to tell my legal assistant to use a color copier but as i said you have the originals as well and it's also in the original appendix of mr crow tear so when you look at it you've got a short sleeve the neck loop cotton top and the background i respectfully disagree but more importantly judge middlebrooks disagree that it was an obvious booking photo let me ask you  this and i appreciate the pains that judge middlebrooks went to and that the government went too but to me it really does kind of look like an obvious booking photo so assuming that we decided that it looks like an obvious booking photo what is your best argument for why it doesn't matter to the ultimate outcome of the trial in this case i think it's much as the government wanted the and felt it was important and demonstrated the need i think that the admission of it in this case would be harmless error in light of the fact of all the other evidence you have also with the fact that the jury made the assessment as i said it was very effective as far as the hammering home of for the jury to to look at it and again i think that you have the when you compare the photographs of taking away the booking photo the david photo and the surveillance photos that in this case if the court found an abuse of discretion that it would be harmless error but again because of the fact that you have slightly different hairstyles and i want to also note that going back to the demonstrably need on the timing this was a conspiracy that lasted over several months it wasn't several years between the booking photo and the fact of the the last date of the conspiracy the booking photo is a few months more out of the time frame but again when you look at the fact of the critical need and the for the government to have all of its options available and the fact that they were slightly different it's not an abuse of discretion especially when you look at the factual finding of judge middlebrooks and i do think that wasn't busa discretion standard in putting in the booking photo when you're looking at that factual finding that it's not an obvious booking photo and when you look at the attire that that would be gain the the th circuit case makes a point that they know that the defendant is on trial they know he's been arrested this is a booking photo from this arrest it's not a situation where you have in some cases where there is a timing element so the jury could put two dollars and two dollars together and realize that you have a prior arrest so again that we did not cite the heinz case in this case we meet the three factors judge middlebrooks although they're not citing the case applied the three factors and there's no abuse of discretion on this record as for the geodon no ass argument or not st of all i think a very important point to make is that this is different from the pierce case in that in pierce you were talking about an identification of the defendant and the court concern in pierce was the fact that you have the jury who can make the assessment and so there it's you should not have lay opinion testimony identifying the defendant as a person in a photograph and less this is type of situation because the jury should be able to make that here you have a very different situation what happened in this case and again i really don't think you can understate how effectively the defense hammered the government about the original mis identification and charging of you have a now and so you had geodon know who worked as the manager of the post office in palm beach gardens for i believe it was over a year mr tonsils correct as a that when the question was asked were you a supervisor she corrected the prosecutor and said i was his manager but with all due respect that made no difference when you look at it in the big picture because what she said was i was on the floor she talked about interacting with you have a no clo tear she was able to talk about the fact that the hair styles were different she identified him in the david photograph his driver's license photograph she looked around the court room and said no he's not here and again there was a lot of cross examination bringing out the fact that she had testified in the prior trial of you have an l that she knew that you have a know was not on trial here so all of the concerns raised by the defense in the brief regarding the her bias or that she had somehow been tainted by her knowledge were all explored and rejected by the jury so there is absolutely sufficient evidence and i would also note as we noted in the brief that although the govern position is that this was admissible in properly opinion testimony under rule seven no one regardless of whether you look at it an abuse of discretion standard or you look at it as a plain air when i quoted in the a quoted in brief when this issue was raised and judge brittle brooks said were are you saying that she's not qualified to do it the defendant raised a relevance objection so it in the government's position is that this would actually be reviewed under the plane or standard but again regardless whatever standard you apply the test was met and there was no abuse of discretion in allowing your daughter to testify and i take you back for a moment to the mug shot issue of course i'm sorry to ask you this because i  when a mug shot is erroneous lee entered into evidence that is subject to a harmless error analysis but the in the hinds case we said that the introduction of mug shots is reversible error unless the government can show those three things which to me suggests possibly that in hinds we refined what we meant by harmless error with the test and so i guess what i'm asking you is  and i know you haven't really had a lot of time to think about it but just your sort of a nischelle reaction can you harmonize those two cases do you think that harmless error is something other than how it appears to have been described in hines or do you think it's just sort of like you think it's the heinz test does that tell us what the harmless error is or do you think that there's a straight up harmless error analysis like we would conduct in any other kind of case i think there's a straight error analysis like you would in any other case and that the hinds decision with that language does not overrule or i would say even clarify it sounds more to me that when they're talking about it and again i apologize because i haven't read the case or i don't recall reading the case fair for me to ask you but it's absolutely fair i think i should be prepared to answer it harmless error is such a standard across the board foundational aspect of of every appellate review and it seems to me that when the court is talking about the three prong test of whether or not you would admit that there it's talking about whether it's error an abuse of discretion that i think is a different situation because you're talking about ok what is that  need is there do you have a situation where it shows the prior record in a way that's that's prejudicial do you have the rd prong also of a situation where it's obvious that it's a booking photo again all things i don't think we have here but on the harmless error i think it's much broader than that because once you have that error stablished because the court inappropriately found the findings under the three prong test then there's so much more to look at and looking at harmless error then you're going to look at the strength of the case not just whether there's demonstrably need and what the prejudice would be but what that prejudice is in terms of all the evidence the government put in so i think in that sense it's it would be harmless error it's true but i wonder if the st prong accounts in some way for the strength of the government's case the st prong being per the test the introduction of mugshots is reversible error unless the government can show a demonstrable need to introduce the photographs i don't think your honor that strikes me more like incorrectly apply that and think that yes you've demonstrated that you need that evidence for extrinsic act under four or four b but that certainly wouldn't mean that just because there was a mistake and there really wasn't a monster bill need that you wouldn't go through and do the analysis of whether or not there is harmless error so again the government's position is that in this case the thoughtful handling by judge middlebrooks of both the booking issue and the record as stablished with your donna's testimony about her long for over a year i believe relationship as the manager at the post office with you have an elk so tear more than meets the test to give lay opinion testimony and again no abuse of discretion in admitting it even if you apply that more deferential standard as opposed to plain air there for the reason stated your argument and the question about where is the obvious license in the passport photos and the evidence you know that exhibit numbers of those two yes i just checked to make sure i don't misstate it i think that the david photographs is twenty seven and i want to say fifty six for the passport i have those in the dates in a footnote and i just want to look at those and see because if you look at some people's passport and driver's license they don't even were the same person sometimes and just to see the variation because some of these surveillance photos are are not clear they have different heads and shot i wanted to look at the this is booking photo has a lot of clarity to it and it's a straight on photo and it just with the respect to the it's not really an identification in the traditional sense but ms gere danno gave sort of a reverse identification it was our position all along the person in the photographs was you have no cl was saying it wasn't so essentially the pierce case i think is critical for the analysis as to whether or not that was error by the trial court the plastics case that i cited in the brief talks about get specific as to what the substantial nature of the contacts should be and what the record how the record should read before something like lay opinion testimony should be permitted and it talks about the nature and extent of the context about the observations should be as detailed as possible and when you look at the record of ms dear down his testimony she didn't talk about any of the contacts other than being a manager of the branch at the time it was critical to the analysis is that the photograph she was looking at was taken four months prior to her her ever working at the post office and ever meeting you have now closed tear so she's looking at a photograph that occurred well before she ever met him in clothing which she had not used to or custom seen him and i think piers tells you that that is fair and i don't think it can be considered harmless considering this is again an identification case just briefly as to i know just how you mentioned the a t m surveillance photographs and it's my position that they are not that videotape is not a record so our purpose counsel i appreciate but the problem is that have an opportunity to respond understood that all rest on all of the arguments that i raised in the unless or in the questions all rest any or this reason the breeze thank you very much counsel and i see that you are appointed we appreciate very much  accepting the appointment and we thank you for the good good work that you both have done today