rule six thirteen b second the prosecutor committed reversible prosecutorial misconduct by repeatedly shifting the burden of proof during its rebuttal argument unless the court has an issue it would prefer address first i can turn that she told law enforcement that she never saw any other firearm in the house after thurston's offer of proof indicated that her statement was actually that she never saw any firearm at the house second mrs franks in a wholly denied telling law enforcement at trial she denied telling law enforcement that mr not wholly might have had a firearm yes more accurately she says she did not remember stating that making that statement officer thurston's testimony would indicate that she did tell  night of the incident that mr know holy might have a fire these statements are inconsistent this any versus any other is an inconsistency the government response to that by saying well it could be confusion well that's a good argument that the government could make before the jury but that's not a basis for excluding as a prior inconsistent statement and further that i can't remember a statement under the circuit's case law is a basis for finding that it's inconsistent because they are inconsistent they're admissible for purposes of impeachment so long as the requirements of six thirteen b were met here and they were both met here in this case and this is franks the whole he was offered the opportunity to explain or deny and there was both cross and then redirect by the government to her on those statements but also address the question of air preservation these are preserved under yerington yankton requires in these circumstances the discussion of there the defense attorney state misstated that it was hearsay but it was offered for impeachment here there was a reference to under eight on it's not hearsay because under eight hundred one the definition of hearsay requires that it be offered for its truth and so here by incredibly important to the defense and she was shown to have made inconsistent statements and to quite frankly just be lying on the stand and to law enforcement officers and many daves his testimony is not enough to must air both in the nine one one call and in her testimony before the jury she was hesitant and she was that stated i'm not sure she had pauses those kind of problems with he testimony cannot get over the air and excluding this prior and these prior inconsistent statements second the prosecutor committed reversible prosecutorial misconduct by repeatedly making burden honor you claim it goes to a lot more stuff that looks like a claim goes to so so tell me how you how you argue that i wouldn't knowledge right off the bat that it's difficult to get to the d n a ok but i our position is it's the same line of a hard argument to make but as to the first two statements the government even states that the objection interrupted the argument so it was one line of thought and that two objects when the argument begins it's unnecessary to object again when the argument and it's all within the same paragraph just a couple of sentences so i think to those first two arguments of why didn't they put on witnesses to testify as to what m  holy was or was not doing out in the front yard those are unquestionably preserved and here all of these statements are burton shifting and they are improper there is an exception that this court and many other acknowledge that when a defense attorney comes out and says there's the specific witness why didn't the government call them that the prosecutor that on rebuttal can say the defense attorney has a subpoena power they could call this person the reasoning for that exception is that when a defense attorney when they do that and they make those arguments they either explicitly or pleasantly are stating the government didn't call this witness because they were bad for the government that's not what was happening here the government's proposal would have the exceptions to all the rule and instead they're saying with general arguments that quite frankly occur in ninety percent of criminal trials of there's not very many witnesses and they don't  evidence and they don't have physical evidence that this somehow opens the door for the government to say well why didn't they put them on that is too broad and overly broad with this limited exception that this court and other courts have recognized cited in our brief makes that clear that there is this distinction between when it is permissible the cumulative effect of this misconduct requires reversed nor man for a new trial there were multiple burden shifts in comments made and they were done so in a bottle and this court has acknowledged that when prosecutorial misconduct occurs during the robot will it is especially harmful because it doesn't give the defense attorney a chance to stand up  address those comments to the jury for the reasons i've already discussed the weight of the evidence in presented by the government doesn't establish that these comments were not prejudicial finally there was insufficient curative action taken in this case again the objection was overruled so there was no direct address to the jury but these comments are improper did you ask for one some kind of instruction or anything no not after the objection was overruled the only potential curative action taken this week and that's the general instruction that occurs in every criminal trial that arguments are not evidence this court has stated before and another case on particularly misconduct that that isn't you know give a prosecutor the ability to say whatever he or she might say because then then that would just allow any kind of comment to come in so that instruction by itself is not enough to defeat the prejudice that occurred  to open the door so to speak no your honor you did say that writer of who i know you weren't the person i mean the client yes there was the discussion was there's generally discussing there's only one witness right there's this isn't a neighborhood saturday night and there's nobody else coming out they be king out the windows wrecked and there's only one witness there was never like we see in those other exceptions where the courts have stated that's allowed they're not case as far as why it's never asked for i think it's incredibly rare i have never seen that before and in this case i think when the objection is shut down and it's overruled the idea of saying well i think this was wrong so can i have a survey about all the district court has already indicated its belief that the argument was acceptable thank you this cricket will ride your time to a minute so you know to prepare i think you move to the ultimate issue in this matter i'm not going to argue the preservation or the late proffer and all that stuff just because i think what is really at issue here is we get to the nub of it and there was no material that you proper impeachment first of all six foot six thirteen requires a witness to be confronted with the statement here that didn't happen and the reason i make the first two arguments that i'm not really going argue about here is i think it's unfair to put a district court judge in a position of having to assume what the what the party is really arguing but if you even assume that six thirteen is what applies here it requires that the witness be confronted with the statement and she was not confronted here with what she allegedly told officer thurston officer thurston was going to be the witness to say what she told what karen franks the holy suppose he told officer thurston there was nothing in the record about her being confronted by officer thurston and the witnesses entitled to be to be questioned about that and confronted didn't you tell officer thurston x y z that didn't happen she also admitted this question about whether she'd ever seen a gun never seeing any other firearm in the house in the context of the case i say suggest that really is somewhat disingenuous she said she had a gun she had the gun in the closet she testified that what she said what she told the officer was that there was no other got in the house there was no question that karen franks the holly knew there was a gun in the house in the closet where she does testify she had never seen one and then she goes on to say but what i meant was that in the context that i had never seen any other gun in the house at page forty six she admitted she never seen any other gun in the house so that's not a material inconsistency i would say on this record in addition as to this point of whether she'd ever discussed seeing the defendant with a gun she did say that she didn't remember telling the officer telling this is telling a different officer that he might have had a handgun doesn't recall saying that but could have said that because defendant did previously tell her that he had a handgun so again there is no inconsistency even if it had been properly confronted with what officer thurston was going to say as she had said that defendant had previously had a handgun she admits that the defendant had told her that he previously had a handgun and again even as to just trying to understand sort of the relevance here how this fits in this franks the holy said she never saw her husband of forty years younger an age that's another issue but never saw her husband with a gun on that evening the question was at issue at trial was did he possess a gun on that evening she said no i never saw him with a gun on that evening i never saw a gun in the house that night and they're trying to impeach  giving favorable testimony twenty to their client it was good feeling to me but it's an argument obviously that they can make on all of them which they're point is you know is inconsistency is inconsistency is inconsistency and they'd rather have all the inconsistency to talk to the jury about i understand but they also want to have her credible saying that he didn't have a gun that night and that he that she didn't see a gun in the house at night so moving on to the  argument issue and that's you know this is a very concerning one for me the just like to go through parts of the record here as to what the defense argued he said the prosecution quote put words in the mouth of maddy davis quote the government wants you to just blindly accepted versions of events without focusing on the holes in the story quote the government's talking about people and in jury selection you talked about watching crime shows and so forth and so much about how things happened in the first twenty thirty minutes in the story changes later in the in the show quote the government stopped after the first twenty to thirty minutes and they didn't dig deeper quote think about all the things the government didn't show you you quote you didn't hear anything about d n a or fingerprints the whole theory of the government's case touch on the gun quote why didn't you hear evidence to back it up talking about a seven foot man in the front yard with a gun the only eyewitness testimony that you heard was from maddy davis and then they start to argue about the jurors you live in a neighborhood a lot of you live in a neighborhood where houses are close together quote i know when the law enforcement goes to a house and i object at that point and then the defense continues think of circumstances in your own experience what happens when a lot of commotion when law enforcement shows or arrives neighbors speak out the windows and everyone tries to see what's going on there might have been brave souls that open their doors quote but you only heard matty davis i submit to you that is it taking all that in context the words that say it follow you only heard many davis that's it correct thats it in context i submit to you the defense is saying the government didn't put suggesting that this evidence is out there people look out the windows and all this and i it rips upon somewhat sarcastically all admit that you know where are all these people of all these people are looking out the window that surely somebody is going to testify they saw him that night he had a cane and then of course i mean erupted and i'm sorry but what mike said you said they could have put them on all the people beating out the windows going i did but i also to point the objection happens that's my real question that that's my yes it is your person and then of course i have preceded that by saying of course we have the burden they don't have the burden but they could have put on that there's these witnesses peeking out their windows they could have put them on there's an objection my train of thought is interrupted i kind of reply get back into my train of thought and move on from there and yes i did repeat the in essence that part of the argument and then moved on and then the next concern proceed from one twenty seven to one twenty nine and you know my argument was shorter than the defendant's my rebuttal argument was shorter than the defendant's closing argument i would submit to you it was responsive to what  what arguments had been made and and again it's our position the argument was a fair response i repeatedly said that the defendant does not have the burden i also talked about the fact that the lack of evidence doesn't support either side it's don't speculate about what evidence is not in the record you must make your decision based upon what evidence is in the record and it appeared to me that part of the defense argument was urging the defense to consider things that were not in the record frankly that the defense knew that there was no evidence that even existed so to suggest it in some way to my ears sounded like they were suggesting that i had done something improper that the government had done something improper asking them to blindly consider things that we were hiding some evidence that frankly there was no evidence of that i knew all of that existed on d n a on fingerprints on of on other witnesses that weren't being called the last point would be harmless error if there was any error here i would say submit it was harmless there was strong evidence there was a nine one one call from a witness who was a friend of the defendant who was a neighbor who called and observed him with a gun called nine one one this wasn't the defendant's wife who called nine one one and said you know i want to get him in trouble she wasn't she was a loving wife she indicated that she's she really  s not so sure she really wants him to go to prison i mean they were she was going to get divorced but but there's no evidence to suggest that she had some that she was an impetus here in causing this the police to come out that night there was very limited value of mr holly's testimony and to the extent that it was favorable to the defendant that was the bet that was the better part of it was mostly favorable to the defendant that she claims she didn't see him with a gun and didn't know that he ever even knew about the gun in the house i mean all that stuff was very favorable to the defendant and of course we acknowledge in our closing arguments that that she appeared confused i mean that that she definitely was confused and didn't so first want to push back on the idea that the statements that the absence of evidence and pointing to the absence of evidence of somehow improper and in fact the assertion that the statements that there is no evidence means nothing is fundamentally incorrect with our system of justice the argument of if there's no evidence that supports what the government hasn't met its burden of proof to prove something beyond a reasonable doubt so that's something that is done in virtually every criminal trial that defen attorneys especially in gun cases which quite frankly you rarely see d n a evidence and every single case i've seen like that defense attorneys say where's the d n a evidence where's the fingerprints so to say that something that is just quite frankly an argument based off the most fundamental principle in criminal law somehow opens the door is could have in general a huge impact and it's just inconsistent with how our system is set up so if there are no further questions we would ask this court to reverse an armband for a new trial thank you thank you counsel case eighteen twenty seven four submitted for decision by the court