good morning your honor is in may please the court my name is keith donahue and i represent the appellant apennine buzzell i'd like to reserve three minutes of my time for a bottle if i met grant runners to attempt something of a segue from the last case which touched on the forgiving standard of the sufficiency of the evidence this case involves very much the opposite and that is whether the governments can prove beyond a reasonable doubt that the erroneous admission of a full and complete confession  contribute to the guilty verdict rendered the case involved a textbook miranda error my client was arrested and taken into custody on a charge of unlawful possession of a firearm after his arrest an officer ask question why did you have a gun and according to the officer you received in response the answer i always carry a gun because i've been shot at before this error was so egregious that  government has been required to concede miranda error it also concedes that confessions are often among the most damaging of evidence that can be introduced against the defendant notwithstanding those confessions the government is attempting to we're speaking here of the miranda error rather than the errors that sentencing is not on rector honor it was it was raised by written motion and supporting memorandum and it was argued out of hearing there was testimony from several officers on the issues and the district court role that it on about page sixty of the about it ok and then the sentencing you know how was that preserved the sentencing or was preserved at the sentencing hearing where the defense both disputed that mr buzzell had ever  pointed a gun at any officer vigorously and vehemently disputed that point and also disputed that mr brazil had previously been convicted of a felony controlled substance of what was a part of the written  it would have had to present some evidence other than police testimony that had significant inconsistency isn't it that was the only evidence presented in this case apart from the following complete confession so this court's precedents offer some indications of evidence that might have sufficed to sustain the conviction in several cases when a confession has been eroding islay admitted there's been a full and complete confession properly admitted separate and apart from that frequently there is forensic evidence of some kind that's been introduced sometimes there have been a culprit story statements made by the defendant to third parties before being arrested sometimes the defendant testifies and his testimony is so riddled with inconsistency is that the court of appeals finds it on able to reverse the conviction none of that was presented in this case this is not your standard harmless error case where there is a miranda violation the very strict test and you the government has to prove beyond a reasonable doubt that defendant statement to officer o'connell did not contribute to his conviction or i guess stated in the words  only element in dispute in this case was the knowing possession of the weapon correct correct and officer o'connell's testimony waiting the defendant's statement went directly to that  proven or element it's amazing statement that he testified to i always carry a gun so knock that element right out of controversy that's correct  appropriate to take the government's argument to heart and say well that was the that was the credible and believable testimony and regardless of of the off i don't believe it's possible for this court to conclude beyond a reasonable doubt that a jury would have reached that verdict the court needs to consider how extraordinary a full and complete confession of facts any jury the court in the foreman on three case has stated as a matter of law but that's true at that so twenty years ago and it's sad and response to the more particulars of the government's case but the problem with the confession is that the jury to ignore all the other evidence so that in this case the jury had no reason to consider the significant inconsistency for which the defense developed evidence in the record your government your honor mention one fact which is that an officer testified the testimony was never credited by the court and officer testified that during a chase mr brazil suddenly turned around and pointed a gun at him there were two other officers looking chase that was over in minutes they raced a block and a half then turned down an alley and it was over analyzing it under a microscope is that really what you can do here i don't believe we are analyzing it under a microscope this is not a case where the defense was left to spin out a theory and its closing argument this was a case where the defense during the prosecution's case in chief elicited evidence that gave the jurors reason to doubt the officers there was the inconsistency i've mentioned already about the mystery of how two officers could not see this dramatic gesture that one officer saw and the very fact that the chase was taking place so quickly demonstrates why and officers testimony that the defendant suddenly turned around made this dramatic gesture as believe what his comrades right in the position he was and didn't see that it wasn't the defendant's defense that there had been a previous scuffle at eleven forty five undermined by the that the record of calls would only refer to that incidence if there had either been a nine one one call or if the police had radioed the incident and if neither of those things that happened there would have been no record of a document discussed the trial i think this court should perhaps look to the case of united states v brown way in which supports a very helpful instruction in this area and perhaps the most important thing that brownlee says is that it's difficult for the government to argue with the facts that a confession did not contribute to the verdict when it submitted precisely the opposite case to the jury and here the prosecutor found himself compelled to refer to the confession twice and it's closing arguments in the opening phase he used the words here we've got the defendant actually admitting to having a gun and in fact he says those words right after he explains why he thinks the defense theory is wrong so he uses the confession to do what confessions was officer o'connell told except to get that statement and for no other reason your honor and in fact judge belsen inadvertently alerted the jury that that was the purpose of officer connell's testimony and therefore underscored what the prosecutor also told the jury consider the confession with respect to the rebuttal i think it is significant your honor even though it was proper because it shows that the prosecutor could not sic contents to let the defense's challenge to the confession  considered by the jury needed the jury to consider that exemption the fence was misleading the jury by saying it was in writing wasn't a defense that it wasn't in writing by the officer who wrote it down i'm sorry th confession was not made to the officer who wrote it down and impeached the government's case on the fact that the officer claiming that the confession had been made that that officer had not written anything that but this again underscores you know perhaps it all for the defense to challenge the facts that the confession had been made the point is that there was no other route left to the defense that's how important the confession was that's why it can't be said now beyond a reasonable doubt that the confession did not distinguishable because there was a full and complete confession and shahbaz the defendant was being bought he had twenty four hundred dollars recovered from his person the cop said that's a lot more money than i carry around and the defendant's response was there's plenty more where that came from that's it it was a neutral witness or perhaps a witness biased in favor of the defense who corroborated that the defendant had gotten as much as twenty five thousand dollars from philadelphia where the robbery took place shortly after the robbery so that would be the first  to make that the statement was barely inculpatory at all there was also forensic evidence in support of the prosecution's case namely the government could put mr shabazz right at the scene of the robbery well in this case they could put the gun race between your client them that's pretty darn good physical evidence and then well the only way of establishing or trying to establish that the gun was right in my client's life was through the officers testimony and there was forensic evidence putting the defendant at the scene on the ground there were cell phone records showing that he had called an accomplice who pleaded guilty in the vicinity of the wal mart that was rob right before the robbery took place the results of a videotape of the robbery my name is jeffrey when i'm assistant united states attorney here in eastern district of pennsylvania and i represent the paoli united states of america in this particular case turning attention of course to the question of harmless  it is in fact the government's position that in this particular case the evidence against the defendant was overwhelming to the extent that the jury's verdict was surely on attributable to the error as you say in your brief statement contributed to the conspiracy which after all is the standard we must apply i don't know i don't think position that it's that it's a concession i think it's a recognition to say it's a mine was a minor factor that is correct we do say that in the brief your honor and it's a recognition is a minor factor factor isn't it by definition didn't it by definition contribute to the conviction i don't i don't suggest that it is contributed to a conviction under the standard of under a standard being that beyond a reasonable doubt the the statement was unattributable to the to the conviction so that the recognition that it was a minor factor in this case your honor goes to the existence of the statement we conceded that in fact state law is an raise a minor factor in proving defendant's guilt beyond a reasonable doubt that what you say honor as as as contained in the in the appendix another reason for calling o'connell was to address the shifting defense in this case and one of the defense contentions was that and eleven forty five pm on the prior day this this particular incident took place that was that was the beginning presentation and that was in fact what the defense counsel argued to the jury in opening that this particular incident with the defendant occurred at eleven forty five pm on the prior day in light of that calling o'connell to address the fact that his shift did not start until midnight or two of the  february the twenty fourth was significant in encountering that the fence contention even if that's so mr with the the fact remains that the the questioning of officer collier on the argument made shows that the emphasized in front of the jury in questioning and in closing argument how in light of those questions that the government chose to ask and those arguments that the government chose to make can the government come in here now and say that really had nothing to do with and nothing to do with the conviction beyond a reasonable doubt you can say that had no effect well your honor with with regards to the contention that it was emphasized i would i would respectfully disagree that it was emphasized  it was in fact addressed and we and we clearly made that concession however the prosecutor for example in his closing argument i was not the prosecutor in the case but in review of the record you can recognize that the prosecutor in his closing argument my my suggestion to the court is that he didn't emphasize well let me read the first statement from page two hundred eighty the prosecutor's opening so nation which is mentioned in your brief and then we have the defendant actually admitting to having evidence in the case that's pretty strong stuff isn't that well that's that's that's correct and i don't i don't diminish i don't diminish the fact that it's that is strong but i do would like to point out to the court the emphasis placed on the fact that it was consistent with all the other evidence the prosecutor in this case essential he went through all of the evidence piece by piece that was presented to the jury and in arriving at that part of the of the case made reference to the to the entry of that particular statement but pointed out that that statement as opposed to emphasizing the statement or suggesting that that statement would be a basis for finding this defendant the prosecutor didn't emphasize that officer  not in his not in his closing argument but certainly as part as part of the testimony and in his closing argument it made reference to the fact that the officers that that the idea that the events occurred at eleven forty five pm on prior day was inconsistent with the i would suggest to the court that that part of the part of the problem in that particular case was that the confession was used to boasted eyewitness testimony and more significantly that the government that trial argued that the confession should result in the defendant's conviction i'm suggesting that in this particular case there is a distinction in light of the fact that the prosecutor in this case was not pressing the confession for purposes of suggesting that it i'm sorry what i said wasn't he wasn't the use of the confession in this case the equivalent of bolstering the police officers testified haha does that differ from bolstering identification testimony that that's a guy who did it very difficult case for you to get around well i think i i think as i as i suggested of the situation in brownlee was was magnified as a result of the the prosecution actually arguing at trial that the confession should result in difference conviction in this particular case the prosecutor was emphasizing the evidence that was that was presented by way of the direct and non contradictory testimony of the officers there's a suggestion of course that that the officers testimony was in conflict and the government certainly disagrees with that there was no conflict in in regards to the testimony of these officers it wasn't fact pointed out that  two of the officers i did not see actually see the defendant pulls a gun it was officer marco who actually saw the other defendant pull the gun but just the fact that the other two officers did not see the gun at the time that the chase was in suing does not necessarily result in there being a conflict they didn't say that it didn't happen or they well they represented just as in a situation if a three people were standing on a corner where there was a car accident that took place so they are using officer o'connell's testimony to bolster officer marco's test i i suggested your honor that that defense in this case but but clearly the thrust of it was you know it wasn't there set him up right and it was just the inconsistent testimony of the officers mark the one officer who saw him with a gun so the defendant with a gun yes or no seems if that's the case i guess no one the standard we have to deal with whole litany of evidence and mr donahue started to go through it in this case pointing to the the guilt of the defendant here what is the what is the non confession evidence that's so overwhelming that it makes the confession so shrinking well your honor i think in relationship to should vase and this case obviously there was a lot as was it it was a different type of case but if you view this case when the scale that it exists with regards to the fact that there was a quick chase there was a possession of a firearm among the things that you have first of all is the defendant himself when he's initially approached by the officer essentially says something to the effect that it wasn't me i'm just drinking a beer and he took off which is such circumstantial evidence of guilt well the circumstance of guilt perhaps but of a guilty plea perhaps but how does that tell you he's got a gun well i think the evidence has to be considered in its in its totality so that from from that flight on the part of the defendant then you have the activities as represented by the police officers doing their testimony officer marco officer kelly and officer bryant who engage in the chase in argo seize the gun markel seize the marco seize the gun and officer brian who actually subdued the defendant so a motion on the part of the friend in two words his ways he did not testify that he saw the gun but he saw the similar type of motion heard her to clank of metal to then it hurt that's that's correct and he also heard the clank of metal and this was subsequent to hearing officer marco announce gun so that subsequent to subduing the defendant in he heard the quaker metal and the gun was recovered by by officer killing so that looking at the totality of it i suggest that that leaves room for the fact that that testimony was overwhelming plus i don't i don't think that we should overlook the fact that in this particular case there was a shifting the fence contention and the first being that the events as they related to mr buzzell occurred at eleven forty five pm on the february twenty third the night before once the testimony was developing it became clear that that was an error as represented by the police as well as the radio room technician in regards to the to the what is referred to as the ca report then the defense shifted into the to the context that if this was a conspiracy in which the gun was an it on the defendant which as a result would require would require the jury to believe that first of all these officers these experienced officers had retrieved the gun from a prior incident that they that was not reported in radio or the recovery of a gun and that they continue to have this gun on their possession at the time that they subsequently encountered mr bizarre and engaged in this activity as well that one of the officers either officer officer kelly officer  officer marco or brian would have had to have the gun on them and when officer marco announced the gun somewhere in that scuffle because the defendant suffer some rejection of this defense by the by the jury in its verdict that that in fact it was the testimony of the officers in terms of the events as as they are and ravel that made the jury's determination well your honor quite quite frankly and candidly i i would suggest to the court that unfortunately we never know for sure what the jury is thinking at the conclusion of we're very in and  significantly in regards to this particular case what we have to do is make it was sort of what the court of appeals has if you is make an assessment that beyond a reasonable doubt this particular confession did not appear contribute to the to the verdict but as far as your question is concerned i don't think unfortunately that there are any court can ever know for sure what the jury what did your thought but this isn't a person able it's a it's a determination of beyond a reasonable doubt we throw on having recognized it is there and then it's incumbent upon me to suggest why if in fact it's error and it's harmless you're quite right doesn't let me ask the question a little bit differently isn't this really case by the fact that the district court did it here in denying a motion to suppress and thereby the prosecutor the sister you know i say stern who tried the case not only used the confession as part of the evidence but argued the confession thinking that he was dealing with a confession he or she was dealing with a confession that was found to be properly obtained doesn't that compound this case here  but it but it i just wonder here that if this is where it was per se in i don't want to dot the per se rule here in this case that's what i'm talking about but in a situation where the court had made this time is up and i can i trust your questioner in light of any other cases where in fact there is an error that results from the the dial of a suppression motion so that that alone doesn't take this thank you your honors no one is saying that the defense presented in this case was perfect now if that's how i think that's what i want to saying that it's a comfortable defense third it one could characterize it is to typ true i would refer the court to page one hundred twenty seven of the appendix where the defense presents its theory of the opening and to page two hundred ninety two of the appendix represents the same theory and its closing and what the consistency of the defense indicates is that it had managed to establish in the record the facts that it was ready to argue put the officers credibility and enough in doubt that the jury had to make something of it except that the jury objections to the miranda thing while you're arguing for suppression and preserve them at sentencing hearing by arguing at the sentencing is there well first if we were to agree with you about the conviction  that in general judge belsen actually expressly said that he believed it was appropriate for defense counsel to be raising the objections as he did at sentencing so in this case it clearly raise no problem under the court's precedent i also think that it's sufficient for the defense to raise an argument a closing because the standard is that the judge must respond to non frivolous arguments and address them these were certainly non frivolous but  event this case very importantly shows judge nelson having no trouble whatsoever where the time at which they were raised that happily entertaining them the problem is that he didn't resolve the factual disputes that were  that the prosecution was not stressing the confession and it seems that your honour's have expressed some skepticism toward that which i think is appropriate but even worth the case that the prosecutor did not stress that i would submit that's because the confessions speaks so powerfully for itself i think also that your honors are absolutely correct in your reading of brownlee and i can't be distinguished thank you very much thank you very much the case is very well argued we will take it under advise