nora thank you case number fourteen fifty two seventy eight united states of america versus tyler james say for arguments not to exceed fifteen minutes per side mr oldham for the  morning your honor christopher old of a knoxville tennessee bar for the appellant tyler schaefer i would request court reserve five minutes for rebuttal there were two issues raised in mr schaffer's appeal the first allegedly used to rob subway restaurant in this case the government had filed a moat a notice pursuant to federal rule of evidence four hundred four b that it intended to introduce evidence that mr shafer had previously possessed actual firearms counteract mr schaffer's defense that he had not used actual firearms in the robberies that he committed and in fact his defense was i had robbed these places but i had used fake firearms airsoft top guns things of that nature to rob the places in question it was undisclosed in this motion that for a for me testimony that would be all for the trial would involve a friend of mr schaffer's a gentleman by the name of anthony lashley and that he would testify that some four years earlier that he and mr shaffer had shot a gun that looks similar to the object used in the robberies at trial prior to the testimony of the friend the trial judge took up the motion the problem with the testimony was not that it proved mr shafer had access to the firearms eighty eight admitted that there were several statements taken from mr shaffer who had given the statement that in fact he had bought and sold guns on prior occasions but that for every gun that he had bought he had turned around and sold it that he had viewed them as objects to make money and not for any other purpose but the purpose of mr lashley is testimony was in fact to implant in the jury's mind that the gun that mr shafer and his friend had shot some four years earlier was in fact the gun used in the subway robbery after argument the trial judge ruled that he would allow the testimony even though it might not be reliable and the court was very cognizant of the fact that the testimony was probably not going to be reliable and the cordic knowledge that it would have a very strong possibility of prejudice to the jury counts because judge this is judge rogers and you know me all presented to mr shafer in fact testified that every time that he had robbed one of these places he had used to fight the farm and in fact a fight fake farm had been located in an earlier robbery the argument is that because this gun missed mistral actually test my related to a real gun and then he related it to the gun used in the subway robbery it was him it was improper in that it prejudice jury to think that well if there was a real gun used in this robbery been a real gun could have been used in every robbery so it's not limited to just the subway robbery once that testimony came in it certainly prejudiced the jury as to the defense that mr shafer was using in each of the robberies and it was very strong and very prejudicial testimony it wasn't just that they had shot a gun four years prior to this event it was a an examination of a blurry video of the subway robbery going through this gun looks like the gun that from four years ago it had the rounded back edge it was silver it was an attempt to link that very gun to the events of four years ago and to suggest that that that gun in the subway robbery was the gun from four years ago which would is improper because number one the time that had passed and he could not directly say that it was that but it did prejudice the jury by suggesting that well he had a gun this gentleman had a gun four years ago therefore he must have had a real gun and if this if this gentleman is suggesting it's the same gun that he must have had a gun  the there is no there reliable evidence that puts a real gun in mr schaffer's hand at any time there's some codefendant testimony but this is an outside person a person that really has no reason to have an opinion one way or the other about it that comes in and says hey this we fired a gun four years earlier and this conflicts remarkably like this gun to the point that it says to the jury in fact this probably is the real gun it prejudice the jury to think that in fact that mr shafer had a gun he fired four years earlier and now process possibly or probably the same gun is spanked you seem to be saying this is what i'm confused about you seem to be saying that no one could believe that it was the real gun but on the other hand the jury might believe it's the real good i'm sure you can see there is either it's an irrational conclusion in which there's definite testimony that for years prior that he had fired that mister lashley and mr shafer had fired far there's no question about that but that that event is so remote in time that it's not relevant to the events that we're talking about today we're talking about the robberies of the subway which occur for years afterwards but the jury bought them out of prejudice them if it's completely not relevant because i understood your argument and actually the government's response to be couched in terms of a rule for world four but looking at the trial judge's explanation of why he admitted this evidence it seems pretty clear he did not admit this is for real for  he admitted this just as simply relevant evidence relevant to the question whether the gun possessed during the robbery was a real gun because this gun looks very similar to that gun and was therefore probative that this real gun was that gun so i mean it seems like the analysis we need to do here is simply a rule for zero three analysis  he discards that rationale and he says it's just simply probative of whether it's a real gun it's directly probative because this might have been the same gun and that's all all that allows the jury to infer i'm not i mean having to go i understand i understand the court session on how it looked at judge garlands reasoning on this but judge harlin sort of drifts back and forth between four zero three and four o four  of judge harlan basically he says that he's going to allow it that in fact that it has issues they recognize that there are tremendous issues that it may not may or may not be reliable policy i don't know what reliable means here i mean that's sort of hearsay concept i mean it's it's it has some probative value i mean if the gun will totally identical and it was some distinctive gun i know that's not you would not agree with that but you know that a cli if that were true yeah i mean that would have some significant probative value even if it was used before and then the question is whether you know there's some kind of prejudice involved that outweighs  the reliable that word just doesn't work here and it would seem like we just have to say well you know is the probative value of this evidence as to whether the gun the real gun that mr shafer shot four years before was the gun used in the robbery robbery whether that is substantially outweighed by some prejudice here in the district judge said no because the prejudice could really be diffused by cross and i that seems straightforward it's a deferential standard of review and i'm just i'm kind of wondering why that would be mistaken because it it in fact is overly prejudicial it creates in the jury's mind the impression that a gun that cannot be reliably identified a man you this is only looking at photographs from a subway store video camera which i'm sure that everyone on this panel and every lawyer that practice criminal i've seen there blurry they are usually stop motion they don't show much it's creating an unfair prejudice an unfair inference in the jury's mind that in fact the prior gun is in fact now the gun that is in fact used in that and if that gun is real did other guns really and i apologize your honor we're over ten minutes  that it does it really does it only relates to the robbery of the drug dealers once again it does go to the overall thing that there was evidence that the particular gun is that yes there was the gun there was a gun that was identified that belong to a codefendant that the codefendant and another i think pointed said that in fact that mr shafer did have that mr ruff and there was and there was  c testimony to that they recognize that in this case i'm just wondering whether there could have been any harm from the absence of this letter that mr ruffin who refused to testify was not unlike the other unlike the other co defendants and some others was not subject to the government's good graces in this particular instance it was in fact afraid of what the government would do to him for his testimony he had recognized that mr shaffer had had a fake firearm at this point there is no question that the testimony is very very clear that another person that was our neighbor has to have a little bit of time so basically your answer as to whether this was harmless even if it was an error is the all of this other overwhelming evidence in this particular robbery there was a real gun all of that is sort of tainted by the fact that those people got something from the government the answer no i'm not saying that i'm saying that it did not mr shafer the opportunity to put on evidence that in fact that supported his theory  the victims identified the firearm from the government to the victims identified as a fire means that that he had held a far i don't know that they were in a particular position given their previous statements by previous inconsistent statements about the gun about about that particular gun that particular gun the testimony was very clear belonged to another codefendant there's no question about that and another that other codefendant asked the one of the other gentlemen that testified to had that gun so there's no no question that another gun had that if they would have had the testimony about the fake guns in both instances if they would have if they could have had the testimony from mr ruff and are certainly the joke at recognizing that in fact it was it i think that the failure to do so in fact did in the midst schafer an opportunity to present a fair in full defense and it did  please the court kelly norris on behalf of the united states as stated there are two evidentiary issues before this court but this court must find an abuse of discretion in order to overturn either of the decisions made by the district court and clearly there was no abuse of discretion in this case turning first to have been couched as the rule for a four b argument which may more appropriately be couched as a rule for three argument regarding anthony lashley testimony possession or use of a gun was highly relevant in this case regarding the subway robbery as this court is aware there was no firearm that was similar to the subway robbery firearm recovered but the description provided by anthony lashley as a gun and that he and defendant shaffer had used shot a few years prior was on par with the description of the firearm that was in the in the photograph from the subway  said they looked very similar and as this court pointed out the district court said that the defense would have the opportunity to cross examine anthony lashley on that on on those points and it did ultimately the the the evidence is relevant and was offered for permissible purpose not only for opportunity or access to firearms but yes in fact that this was the firearm how the fact that this that is relevant to the gun that was used in a subway robbery and the time frame and things that defense counsel is pointing out were pointed out during the trial and as this court noted the jury could consider united states would like to know that there was a discrepancy in its brief i only discovered the science and preparation for this argument and that is on page seventeen when the united states cited the frederick case the united states inadvertently conflated those facts  when in fact in that case the witness testified that he had supplied the defendant with multiple handguns and united states that said in his brief that it also included a rifle that was at issue in that case that the witness said he had provided all those guns two years prior when in fact the facts of that case are that the witness testified he provided the defendant with multiple handguns previously but the actual rifle that was a few that case was provided within the same month as with the charge defense date was and so i apologize to the core i just realize that conflation of the facts and wanted to make sure the court was aware that by no means were we attempting to mist a anything to the court but frederick is still on point and that the four four b evidence was the relevant and in fact the four four b evidence in that case was even more attenuated than what is here because in frederick the witness was talking about other firearms that were also know that the proto value of the other act was not substantially outweighed by the danger of unfair prejudice the jury was twice instructed that the defendant's prior possession of guns was for permissible or for the purpose of access to fire testimony which seems to be similar testimony to frederick which this court held in two thousand and five is appropriate should this court find there's a or it would be harmless we had the victim's testimony from the subway robbery in which they both testified the gun appeared real it was metal there was no orange tips they believe the end of the barrel appeared to shoot bullets as opposed to b b s and they testified that the defendant was very deliberate with where he pointed t firearm and he never pointed it at himself moreover the defendant's own statement to investigator i v included the fact that he was buying and selling real guns during this time and he used the real gun in the other robberies and the drug highly relevant to the charge in this case and the defendant made it as such because he put that issues as the issue of the trial and whether or not was a real gun had to be established by the united states and was the issue and therefore anything you zero four and eight zero seven and both of those rules have one factor in common and that is that the for the hearsay evidence to be admissible it has to be supported by corroborating circumstances that clearly indicate trustworthiness and if it's offered in a criminal case as one it tends to expose the declarant to criminal liability under both rules this letter fails co defendant roughen clearly had a motive to lie he viewed the defendant to be like a brother he a prize he was a prize of the defendant's legal strategies and he knew that if the defendant faced essentially a lifetime in prison if convicted of all these charges when we look to the jail calls of roughen we see he says that he tells his father that the government has to drop its gun charges if he came to court and said it was a b b gun he said that he and defendant shaffer intended to work together and it was their word against their charge partner's word who drought johnson who did testify at trial and showing his general character he asked his father to reach out to two people he knew knew the crime victims from the hobbs act robbery that was charged in this case to convince them not to come to court everything about codefendant rough and proved to be unreliable and certainly does not provide any indication of trustworthiness that all of this is just rogers wouldn't all of that wouldn't apply if this was a letter that he wasn't expecting to be used by anybody other than the person he was writing it to and so he says i know you didn't ever real gun so i'm wondering how all of the rest of just about to get to in this letter doesn't expose him to any criminal liability which is what the district court pointed out its words in itself don't expose this declarant to any criminal liability and therefore it doesn't have the requisite guarantee of trustworthiness required by the rules so the words in and of themselves if they don't expose them to kind of liability take it outside the rules regardless this is this is judge batch exposed to to have any reduced sentence and the letter in itself does not expose him to any increase in sense and i think it was alleged in the appellant's brief that in fact he did increase sentence but it wasn't the letter itself that was the issue it was all of the for their conduct and court to continue this perpetrate perpetrate assaults on the court not only is this letter in itself the words would not have have caused the united states to seek any type of upward departure or variance when it comes into court and make himself unavailable and lies choosing to answer some questions and not answer others when a district court has ordered him to do so that's when this letter becomes an issue for him with criminal liability and it's and it's contrary to the guilty plea his own plea agreement which is documented fifty in the record where he says under oath intimate under oath that defendant shaffer had a firearm so there were no no indications of any trustworthiness surrounding this letter and therefore if he came in and  said well he didn't have a firearm he had a he had a fake firearm then he clearly put himself in a little bit of a tenuous position with regard to what was in his plea agreement and what was expected of  those rules there's more required than just some statement from from the from the witness it's required that we have to have some corroborating circumstances that clearly indicate trustworthiness and expose him to criminal liability this letter in itself is not expos liability and therefore it doesn't qualify under the rules and so but rogers but your argument is that even if it did it needs corroborating circumstances that it lacks  absolutely are yes and it lacks them both because of what what what would be a typical kind of thing that would have been corroborating what we look i think for the next i think the fact of all of the other circumstances surrounding the letter to include codefendant roughened motive to lie and his jail calls all the circumstances surrounding it that the letter was out that it might have been corroboration i'm not of trustworthiness regarding codefendant roughen in this case maybe if we had other jail calls or other lack of a motive for him to lie something in this letter that maybe could be corroborated elsewhere i mean as a judge i believe you are pointing out regarding your home with their analysis this very case we had the gun was the real gun was recovered we have a chain of where trustworthiness the court had heard all of that testimony and knew that and that goes into that i don't know that i have trouble understanding the theory of that i mean you could have a statement that has some induce year some corroborated tory indications that there's overwhelming evidence to the contrary and you can have it when there is no evidence to the contrary i don't see how evidence to the contrary is determining whether th particular piece of evidence is corroborated i guess i'm not following that but i guess any event of assuming for the moment that they are different issues or at least alternative issues maybe with some overlapping arguments your opposing counsel was has to agree that these witnesses testified that that was the gun but you're saying that testimony is that the victim said the morning again your honor i think honestly we have touched upon all the issues that hope to raise and if i didn't miss norris has i would then just ask if the court has questions i'd be happy to address those questions at this point it's this judge rogers it's still your memory of the record that there was some specific testimony that this was the actual gun well i don't believe that that the gun that they identified was a gun that was owned by drill johnson i'm not saying that it wasn't specifically identified i'm just not certain that it was specifically identified as mr schaffer's gun i may be incorrect about that i'm not i have been a long time since i've looked at that portion of the record i