for shortly after that the agent testified that after talking to you and he was able to confirm his belief that mr bennett moore was the person who had committed th the clear inference from that statement is that after talking to you and you and said something presumably mr that confirmed they gentz knowledge that mr bennett moore was indeed guilty the government got exactly what it wanted from this statement without i miss you and testify without agrees with you counsel on on all of that just court finds that there is a confrontation clause violation to disregard the question the question is whether there was prejudice so what's the prejudice here prejudice is one i mean it  was it would take it would take a little bit of discernment on the part of the jury to figure out precisely what all of this meant and there was more direct evidence that your client only got in the in the form of asking the officer i was just going to i was just going to sell it what am i likely to get here what am i likely looking at that's correct there was that evidence but that the issue on a confrontation violations did the evidence contribute to the verdict and it was found in his locked minivan and he was seen you know using that many man himself so i have a hard time seeing how this indirect statement affected the verdict oath respect to that statement to charges there was reason to doubt that the major reason was reason to doubt that he said it yes the main reason was that this dynamite evidence of guilt was a memorialized and report until week later that is suspect honor it seems to me that if you have some evidence you write record immediately that's that's that's the practice not a week later not a month later certainly the longer you get the more suspect it and it was his van there's no no are disputing that but the keys were separate he obviously had another vehicle this was a common number of people with their well but you know when you look at how different the evidence was with respect to the ammunition which he was acquitted it's just dramatic here when he was found in a common area he didn't confess t holding it it didn't even manch the firearm so here it seems i just can't imagine the jury coming to a different conclusion even without the landlady statement i just have a hard time in the government's case and that whole became much less reasonable if the officer is saying you know i talked to this neutral witness and said but why would that be circumstantial i said i mean well i'm not going to keep this book that i have i'm going to give it away or sell it that yeah that crediting that obviously that would again but there were as i said there are reasons to doubt moving very quickly to the issue about knowledge with respect to the age of the fire fats relatively clear cut the reason must know the characteristics that make it a statutory bring it with the statutory definition of firearm here right in that defining section it says that guns manufactured before eight hundred ninety eight are not fire and there is no circuit that agrees with she yet to my right about there everybody seems to have held that it's an affirmative defense and it's objective in nature very old and i thought in your briefing you agreed that it was an affirmative defense and then had arguments anyway as to why you should wear an beven now i'm only a puzzled by what position you're actually knowledge we have the person has to have this knowledge that brings it within the definition of a firearm and in this case manufacturer after eighty nine years since there was that but if it's an affirmative defense then you've got to come forward with some evidence that your advertisement from a reputable store that said you know buy own an antique on a part of the west you know it's an eight hundred seventy five winchester so you know that just looking at the gun itself leads to a reasonable inference that you you have exceeded your time it will give you a minute for about all of the time comes thank you the court matthew o'bryant on behalf of the united states your honor as i would point the court to the district court's credibility findings the defense raised the exact same arguments about the police report and and other issues to try to attack the credibility of detectives concannon and sabas at trial and before that at a suppression hearing it didn't work the jury didn't the jury found the detective credible and most importantly the district court made extensive findings that we are twenty six through twenty nine when i want to ask you about the harmless error point or whatever the standard of review is i don't want to get into the arguments between you about the standard of review i want to focus on the evidence and the trial it seems to me that the prosecutor emphasized the landlady's confirmation that this was the defendant's firearm reasonable doubt that that testimony did not have an effect on the record for two reasons your first i would dispute that the government argued that miss you and had told the agent that she had landlady confirmed his suspicions his knowledge that it was the defendant's gun and the defendant's ammunition so so i mean that seems like you you know went out of your way to rely on my light now i mean it seems to me that one answer is well the argument covered both the weapon and the ammunition and they are quoted on the ammunition so it must not have been you know that a piece of argument but is still concerned by your honor in terms of harmlessness again that at the time of the un interview defendant had already been arrested twice and indicted for possession of the gu unlike in the ocampo case this wasn't the the out of court statement was didn't contribute to government and law enforcement solving the crime no the question is whether it affected the verdict admission of  overwhelming evidence to support the guilty verdict on count one a soft putting aside the issue of special agent thompson's testimony about the interview so there was overwhelming evidence of clear district court ruling that that evidence should not have been presented but a decision by the u s attorney to not present the evidence but to repeat it in closing argument why should we believe now that it had no impact on and obviously the u s attorney thought it was going to have an impact or he would argued it and he wouldn't have gone all the way out to violate a district court order to put it into evidence and now you're telling us but it didn't matter thankfully i am your honor it was again it wasn't brought up in the main closing it was brought up in the  portion of the closing to respond to the defense arguments about why didn't the government go and investigate other third parties that that was the context in which it was raised during the r argument again to no objection and all that the district court did find that it's prior ruling had been violated if and that's not a month for the defense is put into in a little bit of a compromising position because that they object to it they may call the jury's attention to it but they've they've previously alerted to the district court to the to the problem here so i think it's probably preserved i understand they didn't jump up at the time and say i think that violates the prob the problem but i think that i think they're in a in a little bit of a precarious position there because they can all they're going to do is just it's just called the jury's attention to this i respect leon i disagree that the district court's ruling the morning before the testimony at issue was that agent could not testify that miss you and i told him that she had seen the defendant with a very old gun that's not what special agent thompson testified to the second part of the ruling was not clear nor definitive the district court ruled that the when the government asked well can can we get some guidance on the contours of the court's ruling the district court ruled that depending on what the agent testified to as to the substance of the  interview then it would probably be prohibited again that's neither a clear nor a definitive ruling and that's what made it incumbent upon the defense to raise a contemporaneous objection so that if the court found there was some impropriety eliminating instruction could be given or some other remedy instead there was no contemporaneous objection and the defense raises the point on appeal that they didn't want to draw attention to it but there's nothing in actual trial record or that the arguments below in terms of that the motion for a new trial that supports that argument they didn't bring that up in the district court well but how can they bring in the district court think they special agent without getting into the specifics of what miss human told you did it have any effect on your investigation so the issue was teed up and the defense it was incumbent upon them to raise a contemporaneous objection they did  not why would it be important if it had an impact on his investigation how would that move the inquiry further for the jury unless it was to demonstrate that that witness had seen him in possession of the gun well what other purpose would be offered for it was offered to respond again this is on redirect not in the agent's direct testimony to respond to the questions on on his cross about why he didn't investigate this third party mr vasquez again he interviewed miss you in six weeks after the arrest in about five weeks after defendants confession so that the point was that the un interview did not change the course of the investigation had a very limited impact now i would agree that it that his testimony about the you would interview did tend to being incriminating but he did not testify that miss you and had seen  defendant with the gun and there are multiple other inferences that jurors could have drawn from this snippet of testimony most notably as we raised in our brief and below that miss you in told him something about that mr vasquez had nothing to do with either the garage or the minivan it could have been something exculpatory as to mr vasquez but there is no evidence in the in the testimony or anywhere in the record to show that jersey must have concluded from this snippet of testimony that miss you and had had seen mr bennett more with a gun and that's what she had told the agent the parties knew that the judge knew that but the jury urge the court not to conflate what what's in the record about what miss you actually told the special agent versus what the jury know which is very little you've got just a few seconds to turn to the question of the affirmative defense what what   and that he reasonably thought it was an ancient gun he would have turned out to be a modern reproduction but your honor that's the first part of your question yes the defense has to bring forward some evidence to support i understand it i understand gun but there then defendant raised almost the exact same argument and most importantly your honour's the court doesn't need to reach this issue because there was no evidence whatsoever to support the argument that defendant subjectively believed that the gun was an antique when he confessed he didn't say oh boy i thought this was an antique that's not that's there's nothing in the record to support that defense and obviously the gun itself  said that it had a patent pending as of june fifteenth one thousand nine hundred fifteen as that the government's expert testified that that was all in the record before the jury and there's abundant evidence outside of what the jury knew but also in the record that would undermine the defendant's belief but they didn't raise it they didn't ask for good faith instruction defendant didn't seek to take the stand there's nothing in the record to support the defendant's request to offer this theory of the defense instruction and so i submit that there's no legal support for it but even if the court has some doubts on that issue there is no there is nothing in the record to justify the district court offering this instruction one respect to what the jury must of infer from the statement i submit that counsels our government counsel's argument shows that they did not use it to say was never a suspect and it didn't affect the investigation because the interview didn't taking place until six weeks after the arrest at which point the investigation is virtually vanished and nothing to do with the house has and everything to do  the in a miscible evidence and here as at least suggested by the court's questioning part of the reason it was harmful was because the government relied on it and highlighted it about his knowledge that then or more was guilty it's just what you're saying that the police know you should trust them they have information that you don't have one of that was his interview and he's guilty so just submitted for decision and we appreciate helpful arguments from both of you