pretrial identification procedures used in this case violated his right to due process and the second is whether plain error occurred when the government introduced evidence connecting him to the robbery of a restaurant that occurred just days before the bank robbery i will focus primarily on the first issue today and let me start you off on that a time line i'm willing to argue that it was a highly suggestive so deliberate but i great man and that video these are people who called in after they saw the video was done in the pennant lee it wasn't like the police identified them first they called in after they saw the video on the news and they tied him because he had a he had a beer sweater like the one worn by the robber that was just an additional fact corrector on there was a video the video did not show the robbers face and in fact the witnesses that testified to the video gonzalez's girlfriend testified that she thought it looked like him but that should she couldn't tell for sure the point is that you can't see the robbers face on the video he's wearing a hat the video is is poor quality and i would suggest that those no bone to pick with that however when you inject into the trial not one not two well not one but two identifications by the bank teller as well as information  the jury that the police showed up at the bank with mr gonzalez photo immediately after the robbery without ever getting into descriptions of anybody at the bank i don't know how a jury is expected to assess credibility with regard to the identification made enough in a blurry video when they're presented with oh there's there were other facts there sweater like the one worn by the robber was found in the dumpster and then in terms of the hat that was linked because the man that gonzales stayed with the night before testified that he had a similar hat and it was missing the next day and gonzales said before the robbery that he wanted to do the bank in then about twenty seconds before the panic button was hit gonzalez shows up at the mcdonald's allegedly to meet with his daughter your honor those are as well as all three hundred dollars in the departed the debit card even though he never deposit fifteen dollars on it all of those are facts or the record or if i could give some of those facts in context the bear sweater mr gonzalez is one of six different people who received a bear sweater in that family for christmas the year before the same sweater so are sweatshirt actually so the fact that the sweater or structure was found in the dumpster i think it's certainly a circumstantial piece of evidence but i don't think it's enough to overcome harmless error as far as the hat part of mr defense at trial was that this other individual whose hat was missing jonathan wilson was in fact the boyfriend of mr gonzales his ex a girl friend and he was somewhat similar appearance and bill to mr part of the defense was that it was mr potentially mr wilson who committed the robbery he could account for his whereabouts at the time of the robbery miss myu werder testified that mr wilson was quote over by the bank at the time and as far as the three hundred dollars mr well senator excuse me mr gonzalez had received a paycheck his final paycheck i think it was four or five days before this incident and it was his daughter's birthday and she wanted to a karaoke machine and that was the explanation for putting the large amount of money into into the bank account and how much did he make and what was that check for his payroll check the money and then move your honor i cannot reall marker i cannot recall is in the record it would certainly would concede it was not a substantial amount of money it was i think less than a thousand dollars he was he was doing janitorial work in maine and set up a condo association the these are all these are all certainly circumstantial pieces of evidence and i would obviously have no problem with the jury assessing these pieces that in the context of whether or not the stricken dolls committed the crime but i think it's extremely difficult if not impossible for the jury to do that properly and consider the defense raised as well as the fact that he did appear at a mcdonald's before the sound alarm was even pulled at the bank which off that one twelve pm so there is a little a plausible alibi here for the jury to consider those things properly i think that well let me back up i think it would be almost impossible for the jury to consider those  properly to assess the credibility build of the witnesses properly when it's faced with such condemning direct identification evidence by the bank teller somebody who comes into court and says not only did and identified mr gonzalez here today gonzalez was not only the suspect from day one he was a spot such that before the police even got any information about the robbery and in fact he's the one that committed the crime didn't take miss miller's word for it well they didn't get a description of the robber before they went in got your client's mug shot show my understanding your honor is that that is not the case that there they didn't get a description at all before they displayed the picture that is my reading of the record  in her mouth but why don't you take these two pictures to the bank and chump the teller they print out his state id photo they print out his driver's license photo they bring him to the bank and they show them to miss miller and they say is this man rather the bank after having taken the driver's license photo and  we know that at the time of the robbery there's times medical records that were found i think he was one hundred seventy three pounds but we don't know what he was before that we don't know the extent of any weight loss there was in addition only kind of to know because we've they they look actually because they're slightly different angles but they're doing the actual picture which is fairly clear doesn't look much like the same person because of the weight loss i mean the weight loss is obvious in also interesting is that at trial this miller was presented with these photos again that she saw at the bank and she was asked by defense counsel does the man in those photos look like mr gonzalez and the answer is yes that that looks just like mr gonzalez so she acknowledge oh yeah you're as much there's there's for the questions i'll start i guess in response of the court's questions regarding the harmless error argument first i'd like to make a correction of the record counsel stated that there was no evidence in the record prior to the officer showing the photographs of to bank teller that he fit the description of the bank robber there was testimony both at the motion to suppress here in page thirteen the one example on page thirteen of that transcript tenet  it morgan stated that based on a description that was given of the bank robber and we know from the the trial transcript and motions press transcript that term miller had filled out a band description form immediately after the bank robbery that was provided to the officers when they arrived based on that description one of the other officers in the rockfalls police department recognized the description as possibly fitting can reconcile us so although and whose testimony is that you that but that's why i filed a motion to supplement the record with the actual photo array itself and when it was copied and reproduced for the appendix the photos to come out much darker i won't i don't stand here and say those two photos aren't darker than the other photographs but you can distinguish characteristics of those two individuals on the actual photo rick but once you take those two out only one man resembles individuals in the photo array their head wasn't completely shade is not necessarily indicative or make it doesn't make them stand out given the fact that the bank robber had a hat on and you don't we see the sides in the back of the individual's neck  and all six individuals in the photo array their hair was either shaved or very short you start out by saying you're going to dress harmless there is the video grainy and does it not show any facial see the invisible face you can see some features of the individual's face at different points during the video because he was wearing a hat and because his head was pointed down a lot of the time in the video it's difficult to see all the facial features but in what was it the head rather than the sweatshirt what was or sweater what was it that the former girlfriend identified made her believe that this was or was a characteristic what she point to in the video that made i think it was a combination of things that the size the clothing the limited features that you could see  and also the girlfriend's sister and her mother both also indicated that they believe the photograph that they had seen and then subsequently the video in which she dating this other potential the that the defendant suggested may have been the one who perpetrated the robbery or at least could have been the one perpetrating were they in a relationship of some kind at the time of the bank robbery yes they were living together in the and that's part of the reason why the defendant had access to the had that was stolen from the apartment because he would periodically when he came to visit his daughter stayed with kelly you heard or jonathan wilson at that apartment and jonathan wilson would leave him there by himself and that's how  we believe possibly that the defendant had taken his hat after he observed it on the video he went to look for it and was gone and was wilson in the vicinity as well kelly you heard or said that he was in or testimony she made a comment that he was around in the area of the bank prior to bank robbery of the jonathan wilson the testimony was that after the bank robbery occurred the police called him on his cell phone he mutely came back to his house and allowed them to s search his house and i would submit that the jury might consider the defendant's argument that jonathan wilson was the actual actual perpetrator of the offense and squarely rejected it unlike the defendant jonathan wilson did not have a motive to commit bank robbery he had two jobs he owned rental property in town he also did not own the sweatshirt identical to the one worn by the bank robber he didn't get it as a gift as well no he did not he also did not driving down the road behind the bank a couple blocks away shortly after the bank robbery he also unlike the defendant did not admit parking in the parking lot of the mcdonald's red necks the dumpster where the sweatshirt with a twenty dollar bill stuffed inside was located later that day so our position is that the jury considered the defendant's argument that jonathan wilson was a potential perpetrator and squarely rejected in addition jonathan wilson did not  the fits of physical description of the bank robber he was taller and heavier he was five ten and weighed two hundred twenty pounds bank robbery was described as between five six approximately five seven and between one hundred thirty five and i believe hundred  fifty five pounds the defendant a week after the bank robbery when he was arrested we don't hundred seventy three pounds a month later he had gone up to over one hundred eighty pounds after being in custody there was evidence that the defendant had a cocaine addiction and after he was in custody was no longer had access that there was evidence of his motive that again that jonathan wilson did not have realize they're being influenced by what they saw earlier so that the real danger of this kind of procedure show he left genuinely believing that she will be day she's shown in a rate which includes that picture she's just been through a fairly traumatic experience of the brain science says that her brain likely filled and the information and part of that factors she had a opportunity to view the bank robber repeatedly he was only two feet away the room was well lit she testified that based on her training she was taught to look at the perpetrator as much as possible in this case the two photographs that she was shown were of poor quality that were in black and white shoes only briefly shown and then she was asked by the magistrate judge at a motion to suppress hearing i identification was influenced by her prior viewing of those photographs and sure her testimony was that it was not in the magistrate judge credit that's one of the name jurors of identification testimony is people are really sure and and yet the brain fills in all the details i mean i could read it seems to be the growing science i agree that the initial dedication procedure showing the two photographs was unnecessary and suggestive but contrary after miss miller was shown those two poor quality photographs and said she didn't recognize kind reconciles as a bank robber they moved on to other suspects and only key back to the defendant when two individuals who knew the defendant very well said they if your honour's unless there's any further questions we believe that the the photo array was not unnecessarily suggestive and therefore that the district court did not care when it denied the defendant's motion to suppress which is what the magistrate court found based on all the factors that i discussed and in any event even if the court did find that given the overwhelming evidence excluding the identification testimony by terry miller we believe that a reasonable correct which doesn't show the face has obscured someone that's the overwhelming evidence well with the in the context of all the they didn't have a description when they when the decision was made to send these photos to the station at age fifty four the of the suppression hearing lieutenant said that the commander had a quote unquote hunch that it was kind reconciles my reading ok perhaps maybe maybe that is true but it's not the record i don't know yet or that question secondly as far as the reproduction of the of the photo right i apologize for the poor quality the brief was professionally printed we  have it yeah i think we have a new supplement of the record with it here's your original s to the three witnesses who made these compelling identifications from this video i'd like to just actually have the quotes in the brief of each of them i records so those identifications are not terribly compelling pieces of evidence i think and they may become compelling one in the context of when viewed in the context of the always thanks to the government for that wonderful job each for us all right listen everyone we're going to take a five minute break so if anyone needs you know to make a phone call or whatever