later today we call the first case of this morning united states of  trial was held from may seventeenth to nineteenth twenty sixteen where mr johnson testified mr mcneil testified and two other individuals that were out there testified mr johnson and mr big knew obviously agree that they parts of what occurred when mr johnson and this are but newell encountered each other the jury returned a guilty verdict on all three counts sentencing was held in august  it april of the government submitted a twenty a j letter as to that fit issue citing united states versus jones a fifty four after seven thirty seven those decisions decided april twentieth and that the government submitted a letter on april twenty fifth they correctly notes that jones foreclosed or fifth argument that arm carjacking is not a federal or carjacking is not a crime of violence and therefore not twenty four c applies that is the law of the circuit we just maintain the argument for it fell into the residual clause of the sentencing guidelines in march beccles versus united states was decided which for somewhat for close that argument and said that the reason clause of the guidelines is not subject to challenges however it is still our position that it was error to find this be or carjacking was a crime of violence primarily because the court did not look at the statute as required the court looked at what the mr johnson allegedly did in those two prior convictions rather than the elements of the crime and so is our position that is still there that even if we do not prevail on the other issues that should be remanded for recent it the first issue that we would focus on is the facebook postings during the course of the trial it came to the tension of the fence counsel that there were numerous photographs of mr mcneill with large sums of  money a gun marijuana leafy marijuana including marijuana but it is now broken and broken down the on cross examination he was asked about is whether his drug dealer where he got his money from his answer that was only are two hundred fifty dollars excuse me two hundred fifty dollars a week at a personal home care business of some sort where he's working part time the photographs in candor of the court the photographs that are included in the record of a pill or not the actual photographs that are in there evidence my office is currently trying to locate those with the district court but what is in there is copies what was submitted at trial was color copies or screenshots of the facebook postings if they are found by the district court with this court's permission we would sell them at the record at the same images right it is difficult yes they are the same images but because they are now in black and white is difficult to see some of the things clearly that judge barber saw not only with the hard copy but if during during the trial the defense counsel was able to plug in his laptop  a grocery sack full of cash saying this is my broker money there's another picture that is even more telling it's him with what appears to be a bag of marijuana a whole bunch of cash and we're not talking ones involved we're talking about certain questions on those photographs or those images prior to prosecution object prosecution argued that under rule six out weight that the defense callous was attacking mr macneill's character for tr however the defense counsel was arguing was that he was attacking specific misrepresentations made by mr mcneil on all of the stand not not his overall character for telling the truth but specific instances and quite honestly that two thousand and three even more so real success six to eight says that it is limited to the witnesses character for truthfulness admissibility for other grounds of the pietschmann such as contradiction proper inconsistent statement bias and mental capacity is left for a two two or three just verbal recognize that even with those photographs you could infer that mr had not been truthful on the stand and what he was saying because of the large amounts of money because of the child because the in the comments because in those pictures you can see that they were posted by mr mcneill not by someone else and as it was explained during the trial had someone else posted their name it appeared at the top and mr mcneill would simply been tagged in facebook so are you saying he testified that he didn't post them he did not testify that we never got th dealer he said no there are pictures of as i said marijuana but that had not been broken down there's a picture of him with what appears to be marijuana in a bag and large sums of cash  down the road as well as possibly a bottle of liquor he was asked how did you come where do you work he was told he said a personal care home and that he only makes two hundred fifty dollars a week the amount of cash in the pictures the ones with his daughter the bag of cash in his car and the other cash in his lap in the picture in a car contradict what he says is his income so these are all elements attack against him for specific instances and contradiction as we said under six that way in the court should've looked at it under the balance and factors of four at the re but did not the court even said on the record that it could be inferred that he primary witnesses in this case jeremy mcneil and lindsay johnson mr johnson argues that it's a drug deal gone bad additionally that is further supported by the amount of drugs found in the car although never weighed  character that he has for not being truthful or has credibility specifically on the stand not for his character for overall truthfulness it is it would not be harmful or harmless error in this case i a gun being pulled she didn't know what happened prior to drawn talents and testified on direct and on cross examination that is walking away as mr johnson was there so he didn't they didn't necessarily corroborate what mr mcneill was saying it's been contradict  with the government that he had a prior conviction the first thing prosecutor asked on cross examination it was you've been convicted of three prongs have you not yes named defense counsel objected move for mistrial the stipulation old she goes towards nonviolent jury to taint be tainted by any prior convictions in order to convict him for this particular crime if they elicited were just even the number was prejudicial not only if it wasn't it is the court's decision to make that balancing test under six and none it says it must be admitted subject to that that's the court's discretion this term and the balancing test you need to look at the prejudice and it's the magnitude the prejudicial remark oh she stands for the proposition that a court does not want a defendant convicted based on extraneous circumstances or facts not relevant to the case at hand as a said the second part is efficacy of caution instruction there was not one given the strength their strength of the evidence police as mr johnson testified on the stand he was scared of what the police would do he was trying to get to friends or family's house because he was afraid of him and as the video that was submitted and evidence says he was postings and evidence allowed the jury to see the facebook postings would have added nothing it had the potential to confuse and distract the jury which will force receipt to guard against this is a concern that this court recognized and create a sideshow that would distract the jury from the issue that's from record one sixty five and sixty seven the facebook postings do not qualify as contradiction impeachment images did not serve to contradict the witness and the postings were not material to the case north of the defendants whether the victim actually owned a gun or sold drugs was not relevant to whether mcneill was the victim of a carjacking this is similar to the allegations that you gave a relevant irrelevant skill to him but neil's having posted a picture a picture of a gun that he testified was not his and pictures of money that he testified belonged to a friend that does nothing to to prove he owns the gun or the money and says nothing about johnson's justification true the defendant before that the pictures show the victim's gun and drug money but there's no basis to say they belong to the victim just because he posted  this court said in winner's the unpublished decision we cited page twenty two the court set of photographs appearance on a personal web page does not by itself establish that the owner of the page possessed were controlled the and it was really up to the jury to decide who to believe in addition to the victim both of them saw johnson with a gun you have jeralyn thompson who testified that johnson pulled out a gun and proceeded to rob mcneill and then sped off with his car here's an eyewitness he seems close enough to see this that record it at one thirteen and then jimmy a carney one of the neighbors testified she saw a young man with a gun drawn to a car and then the driver surrendered the car and her description matched what johnson was wearing in government exhibit eight eight and that's for a record it's three four chain and of course you got johnson's high speed chase with the police which said nothing about drugs so the told him to sit in his car to look at look at recently drugs record three forty five but even in defendant's version macneill didn't authorize him to steal the car johnson said he was looking in the center console when he saw the gun that's record three twenty eight of the defendant's testimony but he told police that macneill had the gun out another point he said he had the that he took the car out of fear for his life that's record at three forty five but he told the police that mcneill was so scared he jumped out of the car when johnson took the gun from him and of course we got defense the government was entitle to ask him about prior convictions and the supreme court's decision old chief says nothing about cross examining a defendant about his priors when he takes the stand but it's limited to cases involving proof a felon status that's from notes seventeen of the decision which we cite page twenty eight this didn't violate the already stipulation which simply was for the purpose of avoiding the need to offer the prior convictions as an element of the proof of the possession charge at the court's discretion at the court's direction the government did no more than confront johnson with the fact of his having these prior three priors there when the government when the government asked johnson name them the court sustain the defense objection and nothing further was said about the number or the nature of the priors what was the purpose for the government's question in impeachment of the of the defendant who took the stand it's the nature of the earlier crimes that was concerning the old chief and that was never revealed here now in his reply brief johnson shifts the focus from a claim that the court erred in declaring a mistrial to a claim that he erred in not conducting in on the record balancing that's not something it was raised in the opening brief  specific acts of lying on the stand and so it was not it was used under six o eight to show impeachment or contradiction and even if skelton is says the confrontation clause or thus the confrontation clause is generally satisfied with the defendant has been permitted to expose to the jury the facts from which jurors as a sole char's of facts and credibility could and having them cut off we were not allowed to put that before the jury which is a fact that should have been allowed obviously mr if the jury as a court recognized this court recognized the court the jury could have drawn the inference that he was a drug dealer that this was a drug deal gone bad and that there was a problem with these two stories and specifically that he lied on the stand and there's a whole bunch of different ways to explain which showed up and photographed it i mean what the court said is this is going to take the jury off on some on a whole different that's not necessarily helpful with regard to disposing of this case wasn't that the ruling at least in part and who decided to to exclude the photograph of the court  of the questions it would have been how much do you earn a pro week and he said two hundred fifty dollars that's probably a picture of five hundred dollars is a picture of five hundred down but that doesn't mean you must be doing something else if you can post a photo of five hundred if he's held in marijuana and he wants it and one of the pictures it was all the marijuana and so the pictures and one of the other pictures it is clear in judge barbour recognize that he's smoking marijuana so that goes directly to words his credibility on what he said on the