matter on our calendar is united states versus jeffrey h firearm at the person on the couch moments before he was shot dead to what exceptions to the hearsay rule would you have would you have had the judge made statements against honor as this court has determined time and time again a reasonable person in the declarant shoes here miss duncan what are perceived that the statement as being detrimental to her penal interest here the district court must evaluate each case on a case by case basis the dish a court made a finding of fact best this was a neutral statement the finding of fact in the findings of fact the court stated how does this error to how does this add to her exposure i point you miss duncan admitting that she had put the plan together to commit this offense that she had driven her vehicle with the other coconspirators to commit this offense and that she in fact went into the apartment to the home during the commission of this offense only after being hypnotized she says she went into the hall actually on or i disagree with that she was proffered six on six occasions prior to that your honor each and every time she indicated that she was inside of the inside of the doorway she was in the home it was only in the last proffer which the government indicates that she indicated that she said that she went further that she went into one of the bedrooms riffle through the drawers yes or on what about corroboration of her of her statements and and whether they were otherwise believable given her history of shifting stories sufficiently corroborated and next was there was the declarant deemed to be trustworthy turning to the first test your honor the district court determined that nothing in the record corroborated the statement i disagree with the court's assessment on that hummel the individual that mr duncan indicated was pointing the firearm at the person on the couch admitted at trial to being told that michael moore may have had gone he went so far as to say that he in fact approached the couch on armed individual and he says he was aware that he may have possessed a firearm but he was standing next to him on armed i agree your honor that's he's not admitting that that he's he's the shooter but that park that miss six separate times they believe the witness to be trustworthy to be corroborated had investigator young testify under oath in the grand jury you think because they did six proffers they found her trustworthy not the contrary they did six different proffers and they argued at some point that her statements were not the same at these six different proffers why why why do you take from the fact that there were six proffers that they found her trustworthy the fact that they put on the record in front of a grand jury that they that her statement was sufficiently corroborated and deemed to be trustworthy they didn't put her on in the trial did they they did was her statement that hubbell did the shooting that was that presented to the grand jury yesterday and what what context through the new york felony murder why isn't this harmless error the refusal to admit this statement since the jury could have found this to her and guilty of aiding and abetting since there's no question that he was in the room in any event your honor a little what you're saying that the jury was also instructed on felony murder with respect to new york state law under penal law section one twenty five point twenty five and the affirmative defense that exists for felony murder that if the person if the defendant knew or reason we did not know that anyone was armed that would be an affirmative defense your honor if mr herring was denied his right to compel story process to present a defense if the jury heard from home all i'm sorry the jury heard from the end of duncan or the statement of the end of duncan that hommel was the shooter it would call into question the very testimony of a cooperating witness the evidence the trial specifically from hummel indicated that everybody was wearing mat while the up all the witnesses testified that everyone was wearing masks that not everyone went inside the north coat home that reynolds did not go inside the north court home code home according to hommel but he was wearing a mask herring testified that he abandoned the plan once he realized that was it was not that they were somebody's home if the jury were allowed to consider that hummel the very testifying witness that points the finger at herring the jury would have been a would have been able to determine that one hommel wasn't being credible that wasn't credible neither were the other cooperating witnesses and what would have credited or could have credited mr herring and mr herring was denied the opportunity to be able to present this evidence thank you you've reserved two minutes for battle like your thank y good morning may it please the court my name is maureen komi and i represent the united states on this appeal as i did at the trial before the district judge i'd like to focus my argument on the main issue that mr smith focused on which is whether or not judge charisse abused his discretion when preventing the defense from introducing deanna duncan's unreliable proffer statement and just to step back and frame this discussion i want to be clear about what that specific statement is  statement introduced to the granger it was your honor that specific statement to be clear was not that humble was in fact the shooter throughout all of her proffers miss duncan was very clear that she never saw who shot the gun she never saw who shot michael northcott the specific statement is that while duncan was inside of michael north coats home she saw jessie hummel pointing a gun at someone on the couch and she couldn't even say who that person was at first she thought that the person was sunny michael north coats roommate and then she backed off of that and said she wasn't sure who it was so that is the statement that the defendant was trying to get in at trial and judge harris in no way abused his discretion in denying that application in denying them from putting that statement in for three reasons first that statement that duncan saw someone else pointing a gun during the robbery was not against her penal interest second the defense offered no corroboration whatsoever of that specific statement that hummel had a gun not to mention pointed at anybody during the course of the robbery and third judge harris was absolutely correct to find that at the time of trial ms duncan was not a trustworthy declarant if i may walk through briefly each of those three points because ms duncan statement was made in the context of a broader confession to her culpability in the robbery and murder of michael northcott the supreme court's decision in williamson provides the framework for deciding whether or not that specific statement was against her penal interest and in doing so it's important to look at whether that specific statement was so against her interest and so likely to incorporate her  that no reasonable person would have said it unless it was true and when analyzing that kind of something proper just a second so in looking at the statement you know williamson talks about it kind of a bit by bit analysis but still to understand a narrative there are several statements that may be taken into account and it's not immediately obvious why this was in part an integral part of her narrative certainly or are so i think the key part of her narrative was the fact that she participated in the planning of this robbery she identifies all of the people who she went to this robbery with she identifies who the target was that the target was marijuana and then she provides details about what happened afterward splitting up the loot afterwards that against her piano and her said punch or the scene of the crime so your honor all of the other statements do go against her penal interest but the specific statement that one other person jessie humble possessed a gun and pointed it during that robbery is not against her interest because it doesn't matter whether or not it was jessie hummel or someone else to be mr home or could be any exactly around it does nothing to further ms duncan's culpability she's already admitted that she participated in a robbery during which another coconspirator the supreme court in williamson said we should be particularly skeptical of those types of statements because when made to law enforcement the incentive is to make myself hear ms duncan look better by making someone else look more guilty and that's exactly what she was doing in the statement she was saying that i was a passive participant i was just standing right at the door trying to make herself look less culpable picked on a hollow and not hammering to make herself look less kofi and whether it's hummel or herring makes no difference to her penal interest it does not matter to her whether it was hummel whether it was herring or whether it was someone else entirely it does not equal it is the same as your point exactly or honor exactly or honor and even if this statement w against her penal interest somehow this court has made clear in doyle and many other cases that the proponent the evidence bears the burden of providing clear indicia of reliability that needs to be strong corroborating the specific statement and hear that specific statement why did you introduce but your honor was out of it was it was out of fairness it was it's unclear whether or not we were we may not have been actually required to but we didn't want to be cherry picking the evidence that our witnesses were telling us so we presented a fair accounting of all of the evidence that we had been provided by our witnesses but we by no means asked the grand jury to believe that hummel was the shooter to the contrary we asked the grand jury to return an indictment that specifically allege that jeffrey herring was the shooter and they did so and what we asked the grand jury to believe at the time was that duncan was accurate in her description of how the robbery was planned who was participating it that there would be guns there and then the aftermath of going back and splitting up the loot gave broad regus his house later on but there is absolutely no corroboration that for the statement that jesse hummel ever possessed a gun inside of michael northcott it's home to the contrary is this court and salvador made clear when conducting that particular analysis we can look to contradictory evidence and here there's a whole bunch of contradictory evidence three cooperating witnesses mark mack jesse hummel himself and william lewis all testified at the trial and all three of them agree that jesse humble did not bring a gun inside of michael north home that jesse excuse me that jeffrey herring did bring a gun inside of the home and all three of them testified that they saw with their own eyes as jeffrey herring shot and killed michael northcott during the robbery so there is nothing to contradict that evidence that makes clear that jessie hamill did not in fact have a gun inside of that home and beyond that there's a fence has offered nothing to support the trustworthiness of ms duncan now at the time that her testimony or her information was presented to the grand jury the government obviously did not ask the grand jury to believe the particular statement that jessie hummel had pointed a gun at michael north coat but then later on it became very clear that she had not been entirely forthcoming in that she had not been entirely truthful most prominently she had minimized her own role in the robbery she had claimed that she had just been standing in the door although she'd been a driver to and from she claims she was just standing in the door or just inside the door let me ask you just in terms of a statement against people interest if the unavailable to claire and also describes other circumstances you know that there was someone on  it improper for the court to admit those as well it might be your honor they would they would also be statements that are neutral as to the declarant zone penal interest the inquiry needs to be about each pacific statement and whether or not it was that only a confession that gets admitted or something with that says yes i agreed i planned i went because if they do give credibility in terms of context and knowledge of specifics in a way that a simple confession may not honor that's true but the question that williamson tells us to ask is whether each specific statement tends to really expose the defend or excuse me the declarant to criminal liability so the question is would this particular piece of the statement with this particular piece of the puzzle tend to increase the chances of criminal exposure and here there are statements about planning the robbery going to the robbery knowing that there would be guns those statements would all very clearly be against duncan is important context for whether or not the declarant would believe that the statement is against her penal interests when i'm trying to understand well so here ms duncan was making the statement under an agreement that said that the prosecution could not use her statements against her in their case so that even lessens the likelihood that any statements that she made implicating herself during those proffer statements during those proffer sessions would have exposed her to criminal liability and this court has noted in dicta in doyle a belief footnote sixteen that that is an important context and that many in many cases statements was your first argument well your honor i think it's an important piece of the of the context but i also think that williamson pretty clearly decides the case as did judge finally if i may wrap up with the point about harmless error as i think the panel has already acknowledged even if jessi hempel statement had been presented before the jury  it would not have changed the outcome of this trial first of all ms duncan statement does not change the evidence about who the shooter was again she did not actually see the shooter and even if the jury had decided that jessie hummel had in fact been the shooter the jury was instructed on felony murder and aiding and abetting liability and duncan herself still puts geoffrey herring as a participant in this robbery knowing that there would be guns during which michael northcott was shot and killed thank you thank you count so now you have yes involves the use of the proper statement and the last being the trustworthiness of missed don't miss the government indicates that it makes no difference whether or not duncan named tom or herring it doesn't add to her exposure this is exactly what was discussed in in williamson this is the example of sa went to joe i'm sorry this is sam i want to chose house a reasonable person in the declarant shoes being linked to conspiracy i would take it a step further in adding to that example sam bill and i went to joe's house to commit a robbery there's a conspiracy between sam bill and i bill if the declarant said that bill had a gun in the car as miss duncan she said reynolds did here she has knowledge and that sam pointed a gun to joe in the apartment again it's knowledge it goes to the issue of linking her to a felony murder and that she doesn't have the affirmative defense under the new york state law to a felony murder no matter who pulled the trigger that's correct your honor but if she can legitimately say that she didn't h believe or reasonably believe that anybody was armed during the commission of a felony she would not be guilty of felony murder under new york state law and at this and potentially under federal law if she were tried for the same that's why it's not a if you look at the specific facts of the cases cited by the government being boyle and albrecht and doyle the declarant had already accepted responsibility when he made the statements in issue in a declarant was shifting blame away from his friend that's why the statements were not admissible the same thing with albrecht obrecht had a cooperation agreement and the statement had a little little adverse effect on the declarant in that case so i believe that whether or not a proffer statement could be used is a factor to the issue of the trustworthiness of  by my own admission it is sure ange that miss duncan indicated that she was hypnotized however she never deviated from the fact that she observed hommel holding the gun pointing in the direction of the person on the couch i point your honor to the issue of the cooperators william lois testified at the trial he met with the government multiple times the very first time he met with the government he indicated that he went to the north pole resident to buy marijuana he didn't even learn of in the ferry its nature of the act until he was on the porch he said and he was not responsible for the kicking in the door of the co imagine if the judge had usurped the jury's role and not allowed ms to not allowed mr lois to testify doesn't work like that of course this is something that could be explored on cross examination the government is the one that was present at every single proffer with deanna duncan that the statements were not recorded but they had in hand written notes of each and every meeting they certainly were armed with the ability to bring out this evidence before the jury of any issues with the impeachment of miss miss duncan's credibility or trustworthiness and i submit to you your honor is that the judge should have allowed that to happen