i meant this week we have three year olds to hear this morning we're familiar with your cases we've read your briefs the authority cited in your briefs and at least portions of the record so in the limited time that is available to you you should feel free to go straight to the heart of your argument and not going to wave anything if you're not able to address something that's in your brief but at the high points that you want to make sure that we know about before we are finished if you're answering a question from the court of course finish your answer if your time has expired but please do not treat the red see morning it may please the court my name is jonathan dotson and i'm representing robert wade i raised two issues in my briefs my plan the days to focus on the sufficiency of the evidence  evidence that mr unbox saw griffin hit parrish knew that griffin hit parrish or believed that griffin hit perished there was no evidence that he saw knew or believed anything contrary to what he told f b i agent  mcdermott police officers make sworn statements testify under oath every day and sometimes lack absolute knowledge or recall of every detail sometimes they've come to the wrong conclusion but that kind of mistake is a long way from being intentionally misleading mr own book appropriately qualified his statements by putting them in terms of what i could see what i didn't see to my knowledge and  testifying to that and there's ample evidence from other witnesses and from the injuries that were sustained they did in fact happen isn't that right there there is evidence that some force was used on mr parrish and he did say mr unbox said he would have seen it and he was right or had evidence that he was struck with a flashlight in the face right there's there was there was evidence that that that yes people three witnesses testified to that fact and and he and they both testified that if that it happened they would have seen it isn't right mr emberg made out like they said that to the investigate correct he made that statement to i that highlights however that he's speaking hypothetically and i think that highlights that he that he didn't see it but it's really well i mean how could he not have seen it he's there he's in the middle of the fight he's right next to him he says with quote one hundred percent certainty unquote the griffin did not strike parrish i mean he's testifying he's testifying with complete certainty that the opposite of what happened actually happened and he is in the thick of it and there are multiple witnesses who testify about griffin haven't hit parrish with a flashlight i would respectfully say that the word certain wasn't used if you were if you listen to the exhibit he said one hundred percent just to my knowledge that griffin didn't hit parish and the testimony that i missed by why was the jury not entitled to find that that was intended to mislead the agent because there wasn't evidence that he did know or see that that happened what they it came from him he would he said it if it it happened he would have seen  it and then they could believe that portion and discredit the other portion isn't that right well his statements were the actus reus and even if his statement i would have seen it was incredible even if he was  that and which case it's intentionally misleading right i would argue he anyone can overestimate their abilities in hindsight that's a nice jury argument the we're here on a different form of review i understand the testimony describing the incident it was enough to describe just that the strikes happened it described mr umbach laying on one side at this dogpile with mr kinds on mr parrish's back holding him in the head like mr kinds was three hundred pounds and mr next testified mr griffin approached from the opposite side so mr on back as at ground level and mr kindness on mr  parrish's back it wouldn't have had a line of sight to that he he said he would have seen it but again he's speaking hypothetically and that could only be intentionally misleading with some other evidence that he did in fact see it other than his is overestimation that he that he would have seen that don't we but we both agree that some time earlier that there is evidence that it happened there's evidence that it happened there is not evidence that he saw it or that he was on testimony that he was in a position to see if it happened and he would it any would have if it would have seen it and had it happen and again i would argue that's not an assertion of personal knowledge that he was at work that's a hypothetical reconstructing of what happened and he answered the thread of his all in a hypothetical if the jury believes that aren't we both agree there's evidence from which the jury could infer that it in fact happened right i would not agree that that's a reasonable inference for the jury to make that the beating that he that he saw beating happen or knew that it happened i think we understand your argument  that i'd like for you to address but i want you to know i think you raise a fair point that you were entitled to bring the pleadings from the other  issue there was no question there was a question about how much money she was going to get she was going to get pretty much nothing in one circumstance and the other circumstance to get a lot of money here it's it's clear from the record that he was suing and it's clear from the record that the nature of the injuries would have allowed him to sue for a tremendous amount of money so i mean well i would start with that seems distinguishable and i would  point that the cross examination actually had yielded and admission that it was for a substantial amount of money i'm not writing notes or i think judge sand's let me know that you've gone far enough and there's not going to be a thing mort question but if i could was there not some testimony at trial that there had been a lawsuit for money damages yes sir but not a figure or not he thought that if i could i would like to talk about our challenge to the court's ruling which allowed chip nix to testify that he overheard the sheriff state in shape when questioned by a deputy well he won't his name be a little while if the case from this court in which statement was allowed under this exception to the hearsay rule where the defendants were not charged in a conspiracy well it was for the if it was is i understand it it was admitted for the effect on  t that is why it was that he did not mention griffin for no regionally and then that he later denied it was it was admitted the government proffered that because his name absolutely does just prior if you look at i thought that you were trying to they were trying to prove that sheriff's preference and yes that this if the government twice in the closing argument makes statements regarding the state the sheriff told him not to put it in the record is that is yes but that is that being proved true is that being offered to prove that's true that absolutely and unequivocally and likewise the government called a was it not to be to omit griffin's griffin's name from the report isn't that right now sir it was the foundation as we say in our brief that tied these deputies to the sheriff  i'm happy to start with the sufficiency argument at the court with like there was you know i don't recall what we're talking about the sentencing is you i mean you it's not your position that these gentlemen didn't hold positions of trust  you acknowledge that being a police officer is a position of trust our sheriff it's just that that position didn't facilitate the crime that absolutely right judge martin yes we maintain that police officers always maintain a position officer griffin beat aaron parrish in the face and then lied to the f b i about mr zak so basic for us to say that there their testimony that if it happened they would have seen it it's enough to establish that it is enough and there is more evidence besides that which is why the sufficiency argument whether eyewitness testimony and everything else that would corroborate that but at the end of the day if if  we're left with an argument from the problem with the evidence the problem with the proof is that they didn't there's not really evidence that they saw it on their own testimony was that if it happened they would have seen it and we know it did happen and there's a lot of witness testimony that it happened right that's exactly right and this court has already addressed that situation in u s b rhonda where the court confirmed that the defendant's belief testimony is not at and there is sufficient evidence when the defendants believe testimony is both wrong in fact and there is circumstantial evidence of an intent to mislead or motive to mislead or that actually did mislead and that is what we have here along with all the other circumstantial and direct evidence of their ability to see mr griffin's involvement and then their false statements to the contrary does seem to me that is leading were prior inconsistent statements that would have been it or miscible be used for impeachment but i'm not sure that there was prejudice yes your honor is referring to aaron parrish a civil complaint fact that the suit existed and then defense was able to elicit the fact that the suit was against the sheriff's office as well as against all four defendants individually and that the suit was for money damage victim's account of how this event occurred this testimony versus what had been alleged in this civil complaint what about that so there was only the district court only limited it was a very narrow limits on what could be excluded here and that was to impeach mr parishes you know statements at trial against the factual allegations in the camp plaint why couldn't well i think i mean it seems to me they were entitled to cross examine him about that to try to impeach him about that  that would be true if they were indeed his own statements but the judge had no basis lawyer works for him his agent it seems to me those are his state it's not right about that so rule six thirteen brief on page thirty six this court did say that six thirteen b does not permit third party statements to ensure rest of the way the rules of evidence clearly recognized they not that a pleading followed by a witnesses attorney is a prior statement of the witness there are other federal rules of evidence that recognizes that right as a general matter that may be true under other rules of evidence but these statements weren't any reason to think that the meaning of the word statement in rule six thirteen is different from the meaning of the word statement and say rule no one i believe so because i believe not defined i believe though any one there is an express provision that allows for the statements of attorneys to be attributed to their clients person whom the party authorized to make a statement on the subject or made by the parties a general employee on a matter within the scope of the relationship and while it existed right and that is absent from six thirteen but i is there any reason to think that the meaning of the word statement in six thirteen would be any different from that i would say yes it is axiomatic that witnesses statements must be his own statements to come in as prior inconsistent statements it would it would it would violate that the truth seeking function of crawling to mean this is just for impeachment purposes we've the point of beta one is that this would be an admission even if you was very much explored on cross examination of mr parrish and i would just say that the suit itself does not actually seek a certain amount of money damages so the argument that they weren't allowed to explore that the suit was for money damages is not exactly accurate the suit was for an amount to be determined by fair and impartial jurors and that was able to come out so any of the fact of the civil suit the fact that it was for money damages the fact that it could have biased mr parrish's testimony was all extensively explore by defense counsel would it be fair to say that there weren't any allegations in the complaint that bore on the issue of whether mr on bach and mr kinds actually were aware of and saw mr griffen hit mr parrish that's correct and none of it when reading the civil complaint none of the factual allegations there have any bearing on the defendant's subsequent conduct in misleading the f b i which is the sole count of conviction on appeal right now that alas they just say on this issue that the district court of course has why discretion on evidentiary matters and it did feel that probing these specific factual allegations in a similar in in a suit arising out of the same events with different standards of proof could unnecessarily confuse the jury and that that is within the district court's wide discretion there  court would like me to address any other particular issues with those really the only issues that your adversaries raised if you want to give them to have the opportunity to rebut something and never have the opportunity to say something about you can johnson thank you i i want to contrast the case united states feel where this court affirmed misleading conduct convictions of some police officers who had covered up beating a man to death because the evidence in that case was what was lacking here those officers it was enough that the beating actually happened there was plenty of evidence of that but they said they didn't know how this man got his injuries that happened before they arrive and if that was the only evidence perhaps they would've been found not guilty but there was blood spatter analysis that showed each of these officers kicked the man in the face so that was concrete at this is a case where your client was there this is a case where my my client was there by the analogy is that you know you're caught toast and it told the investigator if it happened i would have seen it i was right there on top of it he said i would have seen it  credit his own statement that he would have seen it that would have been unreasonable for the jury to credit your client's own statement because it wasn't an assertion of personal knowledge so it is even if they they believed it was credible that he yours if i could respectfully just draw the court's attention to three instances which allowed the government representation that this on hearsay evidence was submitted not for the truth of the matter twice in the government's closing argument the government refers to this statement that sheriff griffin allegedly made and again in rebuttal a witness was called to testify that mr nix had previously told him this that is completely inconsistent with the government's representations that evidence was submitted for the show conduct rather than for the truth of the matter i would like to briefly discuss the violation of the rule of completeness what happened in this case you is that the government was allowed to play snippets of an hour long interview between my client and two f b i agents we twice insisted that judge science allow the government allowed the jury to hear the