what it boils down to is it's and due process violation when you have not one witness and no evidence that basically links the defendant to the statements and actions that are tribute to this to this person  because there are still there's goes to the heart of the issue is there are statements and actions that are attributed to the person now just because someone posts at least work there does not mean that someone who says a name in a court room that that links or provides a rational link to the person sitting in the courtroom was actually angela our mentor that's why it as i said in my reply brief in every direct examination of every direct examination in any criminal case and i have to say as i recall when i was an assistant united states attorney the fundamentals were that you asked a witness their name where they work and then at some point early on you'd say do you know for example a person by the name of philip a turner yes i do can you point out a piece applauding or something he's wearing or where he seated and then the witness does and the the the the request is made of the trial court to ask that the record reflect the identification of the person and what that does is it provides a reliable basis right there a rational basis right there that what's tributed to this person and i think saying that who there are scribing and action to is actually this person yes she worked there but but that doesn't mean for example that just because for example if i say that judge flom said something and i'm thinking of judge flom and i and i miss characterize the name and really talking about somebody else or something like that and what made this move what made this situation even more difficult is the fact as i point out in the briefs is that the evidence fre foundations were relaxed for the government as i pointed out in my briefs and if you look at the transcript where the objections were made where basic foundation requirements were waived because the government could not do them and what that meant is that there was no identity there the things that are fundamental in night in foundations were lacking that is time place who was present when it occurred so you have these general amalgamation of things that occurred and the whole basis of this of due process is to promote reliability i think it was sort of somewhat of analogous here too to the whole issue of identification in general with photo spreads and all of these things the whole idea of why there is a due process issue there is because we don't want misidentification and here it is if as the district court pointed out said the government could have easily easily done this government did it and it didn't do it with any any witness so this raises that fundamental due process issue that's present in confessions that's present in eye witness identification of reliability the fact that this is referred to our man and to the defendant injured i mean really you don't think one of them would have isn't hers it's not a matter of what they don't say it's a matter of what they do say because that goes to another fundamental principle of our constitution our law the government the prosecution has the burden of affirmatively proving something not for someone to not say something or for the defense to point out something but it's the government's burden and to do that and that's why there's this this this fallback position of let's even though the government didn't do what it what it should have done or i guess we assume assume could have done well then we should look around and find something else to to to basically pull this thing out of the fire it's it's it's a basic reliability that's what the all of these rules are for and i use the example of the rules of evidence because the rules of evidence are to make it so that reliable rational information gets to the trier of fact because we all know the juries are composed of lay people and the way that generally people make their decisions in life is not the way that the rules of evidence require one to make make decisions it's that the rules of evidence are designed to to rule out things that are unreliable and that's why when these foundations are not met in the context of this case you know i mean that that is what i'm talking about right right i that's right or study to mean and of course of course we're in this position of of going back to something like that of course because certainly not the best fundamental matter in the matter and that is when you are attributing statements and actions to someone and you don't even identify who that person is now if you want to jump and say because someone someone works them th place and someone says their name that that means that automatically that whatever action someone says is attributed to that name or statement that name then i think that there's a there's a there's a gap there and there it la reliability and that is what due process is all about and that's why in in full spreads lineups confessions that's why that issue of reliability and this is not this is not some situation where the i want to reserve so my time with the defense is asking for something impossible this is very simple very simple if the government could have done it and they didn't do it and the line has to be drawn now i know whether these cases and you look at we the care of various cases and it's cost course the struggle and the courts generally look for something to say well the defendant didn't do this the defendant didn't do that the defendant didn't do this and things like that but that's the wrong focus the focus has to be as our constitution and our law requires they please the court my name steven lee on behalf of the united states as the district court correctly concluded here there was sufficient evidence in the record overall for the jury to conclude that the defendant enjoyment was the same to have been the subject of stipulations testimony and other evidence that was presented to the government's case in chief there was to cast an eye here what happened here your honor is not in the for record as to yes obviously the government did not elicit in person in court dedication from any witness who is obviously i think it's very safe obviously an oversight on the government's behalf  the defendant was the director of certified nursing assistant right there was one the witnesses was her partner as the director of the nurses in the same region there were multiple nurses who reported in an  indirect way to the defendant there was a social worker who testified about how she was instructed by the defendant to help alter patient files there were other ministre to people at the company who testify about their interactions with the defendant so multiple people testified about angela mann time or ask questions specifically about enjoyment and two of those people were asked questions specifically about quote the defendant there were some questions by the government but there were also written questions submitted by the jurors themselves asking two witnesses a particular specifically question such as were you subordinate to the defendant and none of these witnesses done that with but yes i believe that has become a practice in his court where in criminal cases if the parties don't object he would allow the jurors to submit written questions that the parties can review before they are asked so there is a way a check to make sure that improper questions don't get asked but there was a way to see for the seat to see that the jurors they obviously some of them did make the inference already that the defendant and her mental was the a stipulation between the government and quote the defendant and your mentor so all of this is that of the issue as to work there was a stipulation to the authenticity of meant the portions of which specifically relates to passengers that well that just simply says she held up certain position right and it went through some of the deep duties that she had consistent with the testimony now during the course of the trial was early cross examination where the fence lawyer made reference to the defendant specifically and if the records show this is what i'm the defendant when asking questions during cross examination he did refer to enjoyment as the defendant in his opening statement so from the beginning he said that he represented the defendant in this case so overall the issue of danny was not an issue that seemed to be of much significance in this case the government obviously did not listen to him person dedication in court if occasion obviously in hindsight it would've been better for the government to have done so but the overall record and the reason the inference is that could could have been drawn from that record supported the conclusion that defendant and i meant to was the sa he only wanted at counsel table yes your honor i believe that i don't know if the record reflects this but i believe that defense counsel is just defense counsel and his client i don't think he had any assistance  with him a council table during the trial or during opening statements and he also acknowledged opening statements that his client's quote was they are obviously close quote with regard to some of the incidents that came up during the trial such as the alteration of patient files that have been questioned by an audit so overall again given the overall record this and given the  i would say the judge roven or that when you said what happened here that is exactly the due process concern there's no reason for it and very respectfully i would obviously i've been in government counsel's position for a lot of time and i know that you have to there's there's there's no there's no excuse there's no reason and that  concern and more than this that it presents kind of an unease and that the reason there is that a nice is because of that due process concern and that's what due process in all these cases neal versus a bigger as the lineup cases the confession cases occasion because under should have testified under oath under a rule eleven colloquy against herself so there would be identification and you know judge i tried to hypothesize cases of where you have to because in one of the cases it mentioned you know because sometimes there may not be any witnesses who look at it in a fight a person you know i try to i pod cases like that where maybe it's up someone robs a bank oh i'm out of time now you may have an additional two minutes ok someone someone robs a bank and the only thing they leave is say d n a that's it and then we're able to somehow match that d n a which you have a database of it and you match the d n a but even there i was hypothesizing because i always hold up all the things that i think to the li even there you have someone who says i took full of turner's blood inside an essence i cussed at that blood and his d n a is so and so do you see full turn the court room who took that blood from yes i see him right there sister working there and she was always in tandem with the regional director of nursing and there's a lot of conversation going on by a lot of different people this this isn't a situation like we need where you've got two agents on one person that's why it's a different doesn't give you that a nice but there's a lot of people involved here a lot of them and so people are saying things and various things and then as i say over that you have the fact that and i  be said no that you needed a better foundation on that and that's the whole purpose of that is to try to to make that reliable but that's why we have this that exact concern because there are a lot of people a lot of people there a lot of in the situations a lot of people saying all kinds of things and without the witness saying it making that connection of some sort you have a gap and you always have that gap whereas in the the situation even if the d n a is left well the d n a is matched up and someone says yeah that's the fellow right there with blood i took and this is his d n a and then you've got the match but you've got some you've got that that there's no gap and that's a problem there were a lot of people there her sisters working there she's always with these other people and so statements are attributed to there is this or have a same last name you know i don't i don't think she did i don't think she did but i believe they they look very similar and she's hockey likely likely that although we don't know that likely it might be done there might be something there but they see this is not where the defense is asking for some kind of crazy things because obviously sometimes you know defense lawyers will say well they should have done this they should have had a a rocket ship that looked at this and that and they didn't have that this is a very very very simple thing very simple to make sure that we don't make a mistake to make sure and to make to avoid that kind of lack of reliability very simple not asking for some you know special kind of test with a polar emitter or something like that very very simple and i think unfortunately counsel dodged it they didn't do it and they had multiple opportunities and then even after the rule twenty nine motion some a case law indicates that they could have asked no real for in their case for that purpose now it's within the judge's discretion no but i'm sure the judge would have allowed them to reopen the case for the purpose of identifying the defendant but they didn't do that not at all you have an ok i'll sit down thank you do you want to have their trial what i want in i stand the brief on the other arguments that i have what i want is