all right i'll now call the case of the united states versus mariana nels in united states versus pierce this court state a case that is cited in our brief this court noted that other circuits have  recognized the danger of unfair prejudice that arises when the source of identification testimony under rule seven zero one is a police probation or parole officer and in pierce the court went on to note that the appellate courts have discouraged the use of lay opinion identification by policemen and parole officers unless such persons are the only source of adequate identification testimony and in peers this court added we share this concern and likewise caution trial courts to admit this kind of identification testimony only in limited and necessary circumstances with all propriety safeguards in this case the district court decided to not exercise the caution that pierce instructed and to allow a law enforcement agent to testify and give his lay opinion testimony under rule seven zero one that the person that was shown on five public's videos based on his frame by frame analysis was the same person that he had seen twenty to thirty minutes when he arrested more leather no less and this was over strong defense objections by strong i mean before trial and during trial and then can i have ask you i'm sorry you think i know you got things you want to say but it looks i mean in my view of all this it seemed like to me that if the district court had applied the rule in exactly the same way to your expert in the government's expert they either would have both been and are both been out but but so i'm sympathetic to what you're talking about this morning but what the government says in response is well you know i miss novels got i did the witnesses anyway and so there wasn't any prejudice can you direct your remarks to to that it at least you know when when the time comes or your honor and i'm happy to do so now the the two witnesses that your honour's referring to were two coworkers of the defendant at the funeral home and as the prosecutor pointed out in his closing argument they were first friendly with the defendant and he urged the jury understandably to discount their testimony that it was not more let a noise on the public's videos because they had a prior relationship with her and hear the jury not to credit their testimony because the alibi testimony had been in part successfully impeached by showing contradictions and what this what the defense expert who was not allowed to testify and i refer to them as a defense expert but i really should refer to him as the defense investigator whose lay opinion testimony was not permitted he would have been like the law enforcement agent that the government put on an objective witness one who had no prior connection to the defendant had no had no stake in the case and simply looked at the public's videos met the defendant took photographs of her spent two hours with her and reached an opinion that this was not the person on the public's videos so this would have been important evidence both to rebut the government's witness and to corroborate the defense witness it wouldn't have been so it would have been it would have been an extremely important piece for the defense to put on  tippens and as i understand it was the only witness to put your client in the public's is that as a right that's correct your honor that's correct your status as a law office or was going to come out one way or another that's right judge he would've he would of the government called him to testify about the arrest and the incriminating statements that were made during the arrest and the documents that were found during the arrest so that's correct so i'm not sure why there's any incremental prejudice has also testifying as to identification well now he's giving lay opinion testimony the first part of the answer i just gave you he's saying this is what let's assume that that was an error ok what harm what harm know let's go to the what harm well it's the for that question i would direct the court to the closing argument of the prosecutor who went through in his closing argument to the jury every single public's video one by one and asked to each one noted agent tippens told you that he did a frame by frame analysis look at that picture and remember agent was the one who stood next to her for almost twenty to thirty minutes at the stop so relying on that knowledge and relying on the pictures that were available to him he determined that that was ms no and you for you would call when he was on the stand we went through so and then you know i could go on judge he goes through this video by video of the prosecutor does and concludes so as to count one based on those facts based on the video of ms knowles based on agent tippins observation of ms knowles and based on known photos so he's relying on this very testimony that should have been excluded our brief argues as the very basis she also notes the possession of the money orders that she didn't disclaim and also her the statement that they had been paid for with cash but he in his summary of the basis for this conviction the testimony of agent knows the rule seven zero one testimony is expressly included by the prosecutor and this is the count one incidentally is a predicate for count two aggravated identity theft so it's the core of the government's case and the snows had what two witnesses to the contrary yes that's correct your own worker i think and someone else who coworkers  i don't have much to add to this so unless the the court has for the questions i will receive my time for rebuttal that i think you this court would have decided the issue the same way it only means that the district court applying of erroneous legal standard to a basic tooling are clearly erroneous facts in the district court did neither of you in this case and then two of her coworkers testify in the defense case that fact salute lee not her in the video of the jury's given the videos which back top to view them on during deliberations as well as having a few the knowles in the public so it's not right to correct but even without the public figure out there with enough evidence to convict even without let me put it this way with agent knowles identification well if she is she i mean i'm this is a question but if she was not if she was found not guilty of count why and then the rest of it false as well right i don't have to be ok during count one and the rest of the counts were dependent on count one is that i really don't think so because she's charged in count one with you for trafficking in one or more i know what the right access devices she has with her in the car the money orders from publix and receipt but she says they're just in the car and what i was an impossible ex and i wrote she did not say that you know if we've got to talk about prejudice the government's case was very much dependent upon that being her and public's right necessarily becau meaning herself and her boyfriend who was driving the car had purchased the money orders with cash the receipts from the money order there in the car well that we've some of the receipts and they have the public thing from ation on them and agent tippins immediately called publix while there during the roadside stop and say were these money orders purchased with cash and whoever the public person said no they were purchased with a credit card or debit card so that's the first information to show you know that she had the money orders that resulted from the kerchief and they went and got the public's records and the public's records because nobody can testify and someone so this case could have been proven without the video weave and because you had her statement by the side of the road you had her in  the money orders and then you were in the tracing of the money orders from the receipts to the various publics so you say i mean even if she wasn't the person i'm publix you still had that evidence to prove the elements of t what were the owed on it and the date they were there was enough it was circumstantially to put this together and the other thing is the victims whose identities had been testified and then the representative from those credit card companies testified as none of them name is no i mean that well connected to miss knowles because she has the fruit of the crime she has the money is her to the woman in the public's video yeah but she was identified in court as the woman in the car by both engine temp well you know and detective caitlin was there mr herman was there do you think a basis for treating the defense witness identification was excluded differently from the agent yes the basis is if the defense witness had been permitted to testify the most mr wiman would not have investigator by the way he was just someone who was retained by the defense in the hopes that he would make the grade and be an expert with photo comment tree and he didn't so he was disqualified if an expert after a daubert hearing if he were committed to testify as a lay witness the most could have had if i spent some time out of nowhere with mr knowles i took some photographs of her i looked at the public video and i don't believe it's her and how is that different from what the agent testified to i spent some time with miss knowles i looked at the video and i think it's her on cross examination the prosecutor's going to ask how with you came to me this know why does that matter i don't know it i think it undermines the effectiveness of his testimony by saying he he didn't make it i've been expert so now he's coming forward with this writing you could have in the government had only been called could have it could have impeached him but if you're allowing an agent to testify about identification on a video based upon having spent twenty to thirty minutes with this person a subject that's no different than allowing someone who's been paid to do the exact same thing to testify based on perception right i don't think it's the same thing what's different about agent it is well if he took the other photographs from public sources such as the department of motor vehicles and also the arrest photo from make his testimony stronger more persuasive more compelling but it doesn't explain why the defense witness was excluded as a lay witness i think he was excluded the district court could the district court have allowed the defense witnesses testify and excluded the government agent from testifying and identification the district court did not make findings i think after the albert hearing that word had had enough mr wyman and that was the end of his appearance in court but even without mr one i still don't see how this knowles was prejudiced to the i know that's a very different issue and you've made strong arguments about why she shouldn't prevail at the end of the day but my question is an antecedent one and i'm trying to figure out if there is a basis even under an abuse of discretion standard for treating those two witnesses separately the government certainly wouldn't have been happy had the district court said oh mr wyman you can testify as a lay witness but agent tippins you cannot on identification and only allow the defense to have identification testimony that wouldn't have been appropriate right in a matter of appropriate a matter of abuse of discretion to the court have a reason for limiting or excluding mr wyman i mean under the next as an expert i don't disagree with you but work most days so here we are in a swearing contest whether it was miss knowles in the videos or it wasn't in the thing end of the day it really doesn't make a difference because she had their fruits of the crime with her she made a false statement about them that they were purchased with cash which the records show they were not purchased with cash she's told the purpose of what these things were for i mean the jury could decide they had the video they looked at her for three days and with an in court identification that she was the woman in the car with the youth money orders and receipts and a thousand dollars cash when she's making eight fifty an hour  and i would urge the court to look at that it's on and he documentary one twenty eight patriots one seventy to one seventy two first the district court starts out by telling the jury how to evidence and the jury instructions and what the defense argued in closing is well it's that which again is the negative and certainly there was a basis for the jury to knowles and know what use of discretion occurred turman is no where the question yes i have a question was there anyone else other than the officer are there any specific individual or well i suppose you know this isn't it's a case of money orders purchased with parole or and information i don't think we're interviewing the public's video with through much importan but the government i suppose could have retained an actual expert in photo gamma tree who could have done the analysis thirty in fact mr wyman with i'm able to do and taken the public's video and made way opinion you could have gotten because if it could would have had to have i think people you know where in a little bit of a quandary here this isn't the biggest case in the world where the government's going to go out and it probably is to ms know that you have to do this to miss knowles but misnomers should have thought about that before she decided to go use stolen money orders or money waters purchased with a people's information devote attention to the issue and made a decision that maybe this court would not have made but that still doesn't go to an not to put it but it was it was you were urging the district court to make that that  you i'd like to address two points the first is the is to make sure that the court is reminded if need be that the count to ten twenty eight a aggravated identity theft claims had as an essential element the conviction under ten twenty nine imagine there's enough case law quite through this that i don't need to make that point on those statutes but it is an essential element i would add perhaps too much detail that it's i believe it's true that even if the jury acquits on the ten twenty eight a claim on the ten twenty nine count one it could have an inconsistent verdict and convict on ten twenty a day and that might not be a problem but the jury is specifically instructed that ten twenty nine and i'm sorry if i've confused you by adding that but that ten twenty nine is an essential element of the ten twenty eight count two three four five counts so that that's so that this that i just want to make that point very clear  herman says in part that the testimony concerning the id on the public's videos was you know relevant and important but not necessary given the other evidence for example found in her car and some of the statements that she made to the agent so her argument essentially comes down to if there was error it was harmless error why is she wrong about that well i have beef i've emphasized before the to turn to the prosecutor's closing or and see what he thought was important and i think that's revealing i also would pick up on judge martin's observation that the jury here deliberated for a day and a half after a two day trial and the natural inference is that it those statements that you just referred to judge jordan and the and the money orders that were found in the consul of the car if that had been enough we wouldn't be deliberating for a day and a half chances are the jury was deliberating is that really the person in the public's video that we saw for three days here in the courtroom and that's really what the question boil down to and the scales on that vital question the scales of justice were tilted as your questions earlier suggested in the government's favor because the rule seven zero one expert testified one party the officer from the department of labor that's in the car when they stop this particular i mean that's that's with the law enforcement officer when they stop this particular car and the assignment for the department of labor and agent is identity theft and they stop this car and find a fairly obscurely hidden you know evidence of identity theft or is that just coincidence or do you know what the background is on that i don't know your honor i think i really don't know i have to say i mean i just don't know ok i don't even i was wondering i could maybe i