minutes ten minutes per opponent and then twenty minutes for mr jones have been suppressed or why it isn't everything that has to do with it if you just a matter of clearly erroneous review by us and if that's the case where the district judge make clearer you know that the clear error was in there are two two issues the two points and they're an issue on both points but this back to the was clearly not new in this one with the newly discovered evidence will even apply in that situation excuse me why would the newly discovered evidence restriction even apply in the situation simply granting your request further whether or not he was in custody does not yesterday but why does we find clearer than on the part of the court with respect to his findings that lead to a determination yes that is why that is  her her testimony her demeanor etc should give the the court pause with respect to her credibility her credibility was seriously in question the government agreed that it was the court said that it was yet without any evidence that bolstered her testimony saw her credibility anything that went against that the judge just said well i'm accepting it and i think that was real that's is nothing i mean everyone agreed that she was her testimony was not federal the she was not credible there was nothing that undercut that and yet it was accepted that the judge saying that her testimony was not credible the judge said you see and i have quotes here he indicated in fact he asked the prosecution isn't wasn't her her to be in her demeanor at her testimony her after testimony such that it should give the judge give the court pause and accept that her credibility said that she seems wedded to a position that she took which was clearly erroneous clearly that they can disbelieve testimony if the the witness seems to have a personal interest or a professional interest in the outcome and he said that with respect a certain direction she was still up to the purposely term and whether or not that bias tries to testimony or that the testimony is credible or believable even though the person might otherwise have a bias to not be true for me that happens every time an officer gets on the witness one would think that what if one says at this that there are some serious issues of credibility there should be something that would come in that would make that would counter that that will say well even though she did not seem to be credible because of these things there was these there were these other things that would weigh against that didn't happen there was nothing that weighed against her lack of credibility the issue of course is that the only thing that they had at that the prosecution was based on was the statement so that if the statement where there was no codefendant i believe the answer might be yes but that is not the issue before the court the bruton issue is tied to the rule twenty nine b sufficiency of the evidence archy and what was the evidence that the government mustered here well we are not just learning from this question what beyond the statement itself the brewton i statement the government offer against your were there any other evidence we argue no you want to but because you have to take in a light was favorable to the government we turn to the government's brief on page fourteen it says one the government phone these or for obviously i should ask the same question perhaps more pointedly of your adversary mr jones but but is there anything in here in this record offer by the government other than the statement that would suggest the participation of mr morel in the shooting and robbery of the other mr king and that is what we are here on and that there is absolutely nothing in the record there's nothing in the juice there was nothing violation can be cured by subsequent testimony of the codefendant however frozen in time is the rule twenty nine motion rule twenty nine motion takes and no subsequent evidence after a twenty one motion is after each of the after each of the the counts after each of the other counts the added the the possession of a firearm and so it was a broad based rule twenty nine that included everything  believe that one teen is the conspiracy to commit robbery and therefore that her eye if i didn't make it on the record in my intention was that the rule twenty nine motion is made at  that at that time but what i'm sorry you i want to that go through what was observed on the video and yes and why you think that this could not provide evidence of participation in the crime other than just receiving ours are selling stolen goods it occurred a few hours after the the robbery and the shooting is the history and two different stores and it was mr burrell who was really in charge seem to be he seemed to be the one who was directing the whole transaction  and but in your view and we'll hear from the government on this you don't think this links him in any way were insufficiently not to the charge that the charges of  offenses the fact that mr morrow may have appeared at a jury stall with the jury the fact that he may have conducted the transaction in sight the fact that he wore a baseball cap at the store has nothing to do and does not in any way establish any of the elements of the charge offense remember what in rule twenty nine b what the court must look at is what evidence that the government that came in are so that we are reasonable jury can in fact find that b the government has proved its case at that juncture no reasonable jury can see that the fact that mr morrell appeared with our the gold sheen the fact that he appeared at the store the fact that he conducts any transaction at the store what does that have to do i think it was about fourteen hours after so if mr king had testified on direct examination that is if he had testified as for the government's case then there wouldn't be any problem is that correct that would be correct in my recollection that judges gomez did not rule on your rule twenty nine motion at the close of the government's evidence but rather reserve ruling on it but he didn't make a ruling at that time the and in terms of the sequence of events here then my colleagues have asked you about the robbery and attack on mr leon occurred after midnight on january twenty eighth is that right twenty seven it would have been before midnight that twice i think the evidence is it happened around midnight euro around midnight and then it's the following morning that mr morel and mr king take the jewelry to the downtown stores which a new in house of russia is yet somewhere the following day or around the government or while the brutal issue can be cured with subsequent testimony they cannot cure all twenty nine and if this court was to find that there was a violation because or we argue is that statement itself was not in the redaction any violation of brewton and its progeny grey for example really doesn't matter this is this is nothing but a straightforward question of rule twenty nine is that right what does the record show not was not his case with assuming it was correctly redacted why do we have a rule twenty nine problem or if the statement was redact correctly you have a rule twenty nine problem because the because it is the statement itself because remember the statement is supposed to implicate mr moore of so if it's properly redacted then and the instruction is followed specifically by the judge not to hold anything in the statement against the defendant more out then nothing in the statement should link to mr morrell you must know look at what other evidence other than the statement that would survive that would make it survive the rule twenty nine and what ice i see on a is and the good in the government's brief on page fourteen the government list what those evidence are that the phone now i w what the other evidence are and none of those evidence goes to the element of the charged offense and that's what we are hearing that it's an insufficiency of the argument is a question of law at this point that based on the law the redacted statements of mr king was in the evidence was enough and could it be used for any purpose other than to point the finger back at mr king himself as opposed to being evidence in support of the guilt of mr morale you could not be used in support of the guilt of a small realm all right so with that the second question then is what other evidence to the government put into the prosecution side of the case that would point toward the participation of mr morel in the robbery and shooting be the first government presented was the fact of the shooting the date and time to shoot for clarification purposes the shooting took place after midnight on january twenty eighth how long after midnight when you have to mean by black people like twenty three what time did they go they went past me to ten o'clock in the morning ok but i was later and yes monday morning right the the the incident began to unfold at least in terms of planning prior to midnight on sunday the shooting would have occurred technically and monday morning around twelve thirty am and then the transaction of the jewelry store takes place in the morning after the open once business opens on monday that's  so you have that testimony you have the testimony concert from both liao king senior and his wife that he had to do it in his possession on him when he left the home that afternoon to go to  favorable to the government does not eliminate from the equation the need for the government to always prove guilt beyond a reasonable doubt and in fact the government should not even charge a case of lesser believes has information or evidence to convict beyond a reasonable  whoever the perpetrator of this violent crime was that perpetrator turned it over to him around to sell why isn't that on this record anyway just as reasonable an inference for a try or a fact to has he has no right to possess and he's telling stolen property but once again that we submit that it jewelry the jury has a right to reasonably infer whether opponent has cited on the part of the district judge here what was what was bothering the district judge here about this test most bargain district judge was detected tyson testified that mr king had not been position was he was never handcuffed to what i got there he was there he adds i gave him a movie my lunch i gave him a soda when you had to go to the bathroom went to the bathroom and so we got the d the compass submitted to the that he witnessed the taking of the the waiver and that was done in the morning and also did they come in most must point out that the time written on the waiver was written by king himself not by any of the offices he wrote in that time so mr jones if mr reverse position is correct that this is a pure rule twenty nine issue and we are simply called upon to look at the condition of the record as of the point that the government rested its case we don't need to reach the bruton issue but if we were to examine the bruton issue i'm very curious as to the government's position i read on the plane ride down here yesterday a statement redact states the brute nice statement and i counted one hundred eight times where the named gary was changed to the word some and where the word person was used eighty four times in place of the masculine pronoun he would really like to know the government's position as to whether or not there could be any doubt in the mind of a finder of fact that his nickname those being used in the statement which got his real name is his role so it was a nickname of being used in the but that's not really the issue is it i mean the issue ultimately is w redacted continues to point to that other guy sitting in a defendant's chair in the courtroom and your position is that this statement as a redacted would not be viewed by the reasonable finder of fact as pointing to that other hand or desperate i for purposes of future cases i would not want you to rely on that proposition  most fail to present the interstate nexus element of the firearms and that's what his focus was on this rule twenty nine respect to the waiver the prosecutor indicated his argument just now that it was written by mr king himself and that is true and that is one of the reasons why not only did the judge read it as a issue with respect to detective securitize and was not simply that supported by the prosecutor it was actually in fact that she had submitted an affidavit which she did say that mr king my client was apprehended and found supporter and not only was the judge tell her doesn't that mean that he was arrested and she said no she said that after handed in transport it meant the that in her the affidavit itself she indicated that they had then that the the wires had already gone out that the persons were apprehended she's still insisted that it was no that this  was the the affidavit that she submitted in order to obtain the avast wire and she just refused to back off of that even when the judge made it quite clear that there was this problem with respect to the bushes yes i did have the two photos that goes to my first argument also that as i told the court both at length of the charging conference the other the entire defense was really to be made in argument that was when everything was to be tied together that's why i had asked the judge for an hour to have to do what he gave me thirty minutes  i said i tried to run through as much of it as i could why was the entire case your argument i thought the entire defense case came simply i didn't mean the second statement i making sense to me because the way the major way i can show that the statement was not his statement was that it's fact it did not even allow i'm with the evidence and as we talked about first since the the bushes at the top of the bottle which could not possibly have hidden anyone had pictures of that but throw out where the what the testimony of the victim cases and abuse of discretion i don't and i would add you ended up practically speaking not limited to thirty minutes but rather thirty five minutes or thirty three thirty three but when i needed an hour and a half ten other issues but even in the ones that i did the issue was that the statement that was made and the facts on the ground did not even match why didn't you make further objection at the end of your closing argument and articulate on the record those points or those arguments that the time restrictions precluded you from making you did to the restriction on the record and i was it didn't i had no reason to believe that i would have to go into detail at that time the court had made it quite clear not only the night before but even on that day that the restriction was not going to be limited in fact he had said but we came in that oh well we're giving you five extra minutes you can now have thirty five make a thirty five minutes and then at some point he then took it back to thirty five and said no this back to thirty and then at the end said well we actually gave you thirty three so it was clear that i wasn't getting any more just it would have been a useless  they said the you're correct in that the overall defense was that this is not a statement he did not make the statement but given the way that the prosecut if this is what happens i thought one of the best ways of showing that the statement was not truthful was to show that it didn't even match the facts on the ground and that's what i was trying to do and  guilt well your honor it is not an inference for the jury at this point in fact it is not even to get to the jury it is the judge and it is purely a question of law it is the judge the gatekeeper at this point w make the decision and decision is not given to the jury for the jury to make an inference and it is what the judge must consider is whether or not a reasonable jury could find guilt beyond a reasonable doubt now we understand that you must take the evidence in the lake most favorable to the government but this is a judge issue it is not a jury issue at this one you know you are actually to focus in and in the transcript where my rule twenty one motion was made if you and i would look at the joint appendix at four fifty four on the words you will see where the i started at four fifty four to the top and i pretty much went on all of the all of the comes on when you get to when we get to four sixt you will see that the court cut me off at four sixty it says is says reading from four fifty nine codes you'd be in a better position would you not if you had just made a general rule twenty nine motion and not been specific as to any of the counts i would be in a better position your honor i would but  i think i i was i was attempting to not only do that but pointing out where the government evidence failed to each count one by one but but having done that yes if you excluded other counts then you cannot rely upon a general motion  and a general motion would have referred or would have by implication referred to all of the counts you on the other hand chose to be specific and apparently did not mention foreign eighteen or you are gon it i have it as a joint appendix four fifty nine are the with respect to that the with respect to that is the the court break in and says i think i understand your position where you're going to proceed to the extent necessary on a defense case so basically the court c off the the the defendant morella from continuing his rule twenty nine motion you haven't previously argued that though have you had any point suggested in your briefing  that the who or cut you off and did not permit you to make as extensive a rule twenty nine motion as you may otherwise have wished to do no your honor that was not part