only seconds and that happened those encounters occurred in the summer of two thousand and six his identification of mr cordray out as the person who he had seen came almost five years later in the trial in the trial which was held in the spring of two thousand and ten this identification is inadmissible under the due process clause according to the supreme court precedent because it resulted from a suggests if identification procedure and it is so one it was so unreliable as to really raise a substantial likelihood of irreparable misidentification what happened here seems to be really quite routine in terms of an identification procedure is carried out in our court proceeding in your view how should it have been done to to set aside your due process concern well in accordance with supreme court precedent in order to be admissible and i witness identification should not be suggestive the procedure that is you should not be suggestive it was a cookie cutter question that was asked in the court and you see that person here  in the courtroom today but previous to that there had not been any foundation laid about the opportunity he had had to see the person whether there was a face to face encounter how close he was to the person who he had seen there was no real basis or foundation for this person to answer that question we were when all those matters pursued on cross examination in an attempt to impeach the chief of the real life bill of the of the identification there with some of it was yes the some of it was addressed it did not cover for the entire gamut of all the things that were wrong with this identification but even so the supreme court makes clear that under the neil be vigorous test this this appropriate foundation for the identification question before anything took place one possible personally i'm sorry excuse me did you finish your questions ok one possible procedure would be to do a motion and lemony if if they knew identification evidence was going to be private or when the question was posed to object at that time and approach the court and say there has not been a sufficient foundation laid and we would like some some questions outside the presence of the jury to establish that this identification is actually admissible under supreme court precedent that was done counsel that it was nothing that prohibited defense counsel from objecting and making their requests that's correct which is why we are not playing their standard for if you know the objection was not made the fact is a even so the conviction of mr cordray after hinges almost entirely on this identification there is not admissible unless it meets the reliability criteria just i'm not point your basic contention is whenever there is an individual in court identification such as this biggers applies that's the basic who had been seen in two thousand and six the question was and you see this person in the courtroom today and there was only one male defendant in the courtroom who could have been identified to you you are basically saying the way this played out on these facts was no routinely people are indemnified in court given the unusual circumstance here a single male defendant nothing else suggesting who was that this is no different than a suggestive phone all right therefore we go through biggers and under biggers you something new this this does apply and according to supreme court precedent itself in manson be brockway the supreme court in its footnote nine made it clear that this test does apply to in court identifications if they are suggestive so the clearly here the identification was the functional equivalent of a one man show up or when there was really one choice essentially for the way in this to pick and could you just give me a in the context of why you say that so it's true there was one male defendant at least the government on this at the defense table what evidence do we have in the record that it would have been obvious to the person making the identification they would be identifying somebody who was the defendant in the courtroom in other words does he know that he's testifying against the defendant the the entire line of question that came before was implicating that person that he that he had allegedly seen on those three occasions and then the next question was and you see that person here today and i expressed speckly said made everybody knows just on a gut level this is the big cliche question we see right and all the in all the lawyer shows and everything that i'm sorry my time is almost shouting answer ok this is the classic question that we see in all the shows everybody knows what the were to conclude that under biggers it is plain error to conclude it was a reliable identification in light of suggestive nature we agreed with all of that we would still in order to conclude that it should not be admissible as a matter of  player have to say that the prejudice prong of the plan or inquiry was satisfied right in the could you just explain why that would be true whether there's any first circuit precedent that we could use that would guide us one way or the other on whether we should say that i suggest that identification must be thrown out as plain air as opposed to within who knows well off the top of my head i don't have that authority with me i would be glad to look for some and submitted to the court by basically the the prejudiced process that if affected the outcome of the trial there is no other corroborating evidence in this case even the hearsay testimony which is also objected to in our brief is only is relevant because it's connected to him the witnesses identification of this person and this case was investigated for two years there are not there are no photos there are no phone records there are no videos there are no there is no other evidence against my cup the government did not prove that ms sheppard knew that there was a controlled substance in her suit case the best case here for me as far as cited in my brief and the reason i say that is because that he stands for the proposition that knowing that something illegal is afoot is not sufficient it may have been that a rational jury could have considered michele or to know that there was something illegal in her suitcase but that is simply not enough to convict her of the crime of which she was convicted she had to know that there were controlled substances in her suitcase and the proof on that particular issue is then at best if not nonexistent to meet a beyond a reasonable doubt standard which is the standard of course that this court must protect even in cases where the challenge is to the sufficiency of the evidence now in this case the government did prove that ms shipman took three thousand dollars in payment for a trip to new york city for one day where she picked up two suitcases which she did not check in addition the government proved that she stayed overnight in a hotel room with many people including mr vega who was the cooperating witness of the government so in this unfortunately or fortunately for my client is not enough to prove that my client knew the contents of the suitcase  an unreasonable to the conversation about what everyone was doing in new york took place yes your honor it isn't reasonable there was not a shred of evidence that ms shepard saw drugs or that she saw money mr vegas testimony was to his knowledge his own experiences and there was not evidence to connect dollars from the cash that was contained in one of those bags the testimony about the money reaching the hotel room and how the money was parceled out and how the money was packed into suitcases going back to puerto rico was sketchy at best when they got testified to these events he did not place ms sheppard in the hotel room at the time that the money arri he did not place in the shop or in the hotel room at the time the money was rolled up into rolls and put into aper and otherwise hidden in the suitcases there was no testimony at all as to her whereabouts during this period of time yes your honor there was testimony she was paid three thousand dollars but no there was not testimony that she was paid from a large role of money or a large sum of money that entered the hotel you know in any particular the records or just who p could not why or why wouldn't that itself provide a basis for concluding if you're paid by somebody in a drug conspiracy three thousand dollars to take a suitcase to new york why isn't that sufficient evidence well your honor your question presupposes that there was not that it was a drug conspiracy and that is for one part on opening on i'm saying why wouldn't the fact that you were paid by remember of the drug conspiracy three thousand dollars to take a suitcase to new york be enough for a juror ever knew that the people with her were involved in a drug conspiracy the issue is the defendant's actual knowledge here and the striking thing about this is can we know how she knew either of the people who hate her there is only testimony in the record that ms sheppard no mr vega in a friendly fashion as to living in a in proximity to one another or that they had known each other for twenty years yes indeed but interesting lee also there was no testimony from mr vegas to any details there was no testimony as to whether they had ever had a conversation about this or any other thing it was very very  being think it response to questions from the government yes your honor when when one goes through the testimony of mr vega it is almost incomprehensible as to why these very particular questions were asked the district court judge rel heavily in fact almost exclusively on a presumption that well everybody was packed into a hotel room they must have to stress the nature of the trip but there was never any questioning and never any testimony us to well with their conversation in the room if so what did that conversation relate to the evidence in this case almost it wasn't as melendez the commentary thera was the testimony really related only of her further involvement for example we know the evidence indicates that mr currier participated i think in the delivery of the cash when he returned perhaps to mr santana is there any  evidence about her involvement for the like it was after she returns to puerto rico again interesting lee the testimony that came out was that indeed one person came and picked up all of these return ease to san juan and took them to mr santana's house but mr vega testified that everybody else stayed in the car and then he and one other person went into mr santayana's house and delivered the bags and the bag of money or only open inside the house and it was very clear that misha was not there when the bags were opened and with regard to any further activity in this conspiracy instead this all occurred in september of two thousand and six m shepard rather than continuing in any such activity went to school became a nurse got her nursing degree and never had the knowledge of this transcript had anything further to do with this activity your honor as i see my time is up there question thank you thank you in this case we had a conspiracy to possess it with intent of the she viewed narcotics the scheme was we had drug couriers who would come to the airport with baggage filled with old clothing that they would discard once at the airport and they would have an inside man or woman i think we understand how this scene was laid out houses argument though is very specific that even though counsel may have suspected that there was criminality of what she did know specifically that it involved a drug conspiracy so could you help us appreciate what evidence there may be in the record as to what her knowledge may have been about the nature of always picked up the same couriers and delivered the drug luggage to a different point so he met her at the airport they traveled to the same hotel the drug couriers always travel to in this hotel each one of the coconspirators stayed together in one room so we're talking about these nine but this was her one trip this was her one trip so regardless of how familiar the others may have been this was her one trip so what evidence is there that she should have been suspicious based on one jam experience about the nature of the earth well this is a case where there is sufficient circumstantial evidence to point to her knowledge of what was going on and since beers including the fact that her ticket her fight and her i purchased by the leader of can stick conspiracy mystery man well santana she stayed in the room with all these other coconspirators they actually together packed you know more than two hundred thousand dollars worth of cash in this hotel room with other co suggests that she would have some familiarity with how these organizations carry out this kind of work and there is there is no evidence of that kind of familiarity is there well although th testimony on conversations between mr vega and michele great although he did just find that he had known her for twenty years and was very familiar with her there was not a lot of discussion of conversations that he had with her and i think maybe that was because  about the initial questioning so for example as long as you want a neutral question because no one apply even if there's only one defending the whole and you're being asked to identify the male defendant in the case right because i would not make that would make sense is different because in this case you the defense didn't even object in fact that's i totally understand that would be on plain error but i guess is the government's position and i'm having trouble understanding if it's a one put in neutral terms do you see the person in the courtroom but what's the functional difference between that and saying could you identify the male defendant and the only want to table well one difference is in this case the government didn't as you know can you identify what is the functional difference between that functionally not very much in the spirit of manson briefly it was a show up and you said you see the person that doesn't insulate figures from applying so why should it be different right well in a courtroom at least in this particular case although there was one male defend case and the only identification is the one person show you say that it would be reliable testimony no i think that's big in other words forget your point because no and assume that we only window at an airport down the tarmac when no one person should show would be different because that's not an instance where you have any anything else happening and so one distinction you can make is we have a one person show up there's only you know there's some obviously identifying information about a defendant in the case that's different because in the trial the jury is listening to testimony so the jury is basically observing and it has to make a determination of whether this is reliable including how he initially you know what if we were if the prosecution were to understand this kind of procedure is not compatible with biggers i understood that communion i mean how how would that cause you to change the the way in which you would try to get permission to pursue an in court a general case what would you have to do out of the presence of the jury before the judge in order to go forward with this kind of identification procedure what would you have to do well if if there was a rule you know in the in this circuit i think the government would raise issue you know on its own with with  and say we you know we intend on presenting this witness we will you know proceed with into court identification your honor is there anything you want to see do including maybe seating other males of the table or you know making some sort of testimony doesn't you know he didn't spend a lot of time with our defendant so your honor can we please make some arrangement and in this court we've had situations where it respectfully respectfully the government reason with this assessment that it's obvious that he's going to say it was this event we've had cases where the government says you know do you recognize the defendant in this room the witness looks around the whole courtroom he doesn't recognize anybody and has and we've had cases where the government actually comes back and say hey you see this gentlemen you know the black coat the black pants do you recognize this person and then you know subsequently the witness says oh yes i recognize this person and in those cases even the court says you know there is it there's enough testimony in these cases isn't one thing the government could have done was the phone already first and then under biggers you have no no real problem if you earlier identification with done here that was not done here and that mr vegas involvement from you know his involvement to a wrestler was you know wasn't done in a way to say you know you're here you know look at this defend them yes ok and then move on you know if it was open ended it says you see in the courtroom you know argument here are the small evidence linking korea to the conspiracy depends on make his testimony in two senses he identifies him am self so in vegas is not correctly identifying him her position is there's just nothing in the case linking crimea to this conspiracy so all we have this one person was in the conspiracy you plan out now identifying him is the government briefly as possible there is a bit of an elephant in the room and i want to address and mr and the prosecution made reference to it which was that there must have been a prior identification of this witness the truth is that it's  imagine a prosecutor who takes a case to trial all the way to trial without knowing that his witness is going to identify if that's the the evidence the soul of it and they're relying on the fact that there was a prior event officiation of this which i'll tell you what is on the record what is on the record is that mr vaile was arrested in the fall of two thousand and six and he did not mention these encounters or this person he was decided to cooperate in two thousand and seven and at that time he did not mention this person in two thousand and eight he was interviewed by law enforcement again and he did not mention this person his identification that necessarily because it was expressed on the record of mr kota  unless i'm asked about it because it's not on the record the fact that there's a previous identification really only makes matters worse because even in the us the way the supreme court recognized that these pretrial exchanges with law enforcement regarding identifications are likely to pollute in court identifications i and i'm quoting serving to crystallise the witnesses identification of the defendant for future reference with the result that the state made that rest upon the witness is unequivocal courtroom identification and not mention the pretrial identification as part of the state's case at trial so i think that it's important that the court address the fact that in virtually all of this it's difficult to imagine a case in which there hasn't been some kind of  previous identification and it really only creates more concern and more on reliability and frankly more suggestion more suggestion because there's already been a suggestion that that's the person and then when they see them for a second time they may be recognizing the photograph that they saw before instead of the actual person in the actual incident if there's nothing further i don't know pretrial discovery is much more limited in criminal cases but i mean you're for the reasons you explain you're growing the inference that there must have been some kind of pretrial identification procedure where you are in a position to actually determine what happened pretrial through discovery measures that are available you i can only explain what i saw i think if you'd like from from a discovery does evidence not just doesn't generally about the discovery procedures would be available to defense counsel in a case  materials that were available to me it is in the podium it is it is in the information in the information that i received i was not trial counsel i don't know when counsel received that information reports that make reference to a previous identification there are also police reports that are heavily redacted and i frankly have not gone through the exercise to see if that part was redacted or not and i don't have a record of when exactly something else out of the three that some of these outside of the four corners of the record but basically is is something else and of the three encounters it's something outside of the three encounters which occurred way after the mr vega had been arrested i had been cooperating for years with the government and that discovery was made known to the the defense i don't know exactly when the answer to that question is i don't know exactly when i don't think i have kind of an identification procedure pursued prior to trial a procedure that would have allowed mr of a good to identify mr korea as the individual that he ha was whose employees at the baggage handling were involved in the conspiracy but that correia himself it turned out was never employed by the same employer that was the employer for all the other baggage handlers in the conspiracy that right let me not sure that i understand the question started in zero four and let me state it in another way mr cornell saudia was employed by the port which was a different company than she was claims to you and there were i and two airport employees testified in the case for and i believe they were both from g at d c and neither of them identified mr quite as having any participation in  whose has no other information about her in the record the flight home was purchased by mr vega in cash with respect to spending the whole time purchasing including in new york there is absolutely nothing in the record to suggest that mr frazier searches to anything in new york with respect to the multiple days in new york assertion of the record indicates in a shopper flew to new york on the ninth of september two thousand and six and returned to puerto rico on the tenth of september two thousand and six for a one day trip there is no testimony at all on conversations with mr vega as opposed to not a lot and with respect to your question just a slip as as to whether there was a willful blindness instruction in this case there was not i have reproduce the entire jury instructions appendix four thirty one thank you your honor