the next case and not top united states versus not tom around us fire said by my client's genital it is appears true that the act was intentional but there is not a shred of evidence in the entire record of this case objected to it was objected to once it was objected to then the defense counsel was put in the position of having to formulate a defense based on the ruling the court made and the the testimonial hearsay was overwhelming it was not a stray comment it was not confined it took up twenty five pages of the trial transcript reading that grand jury testimony court gave women struction could be any is that your position that is correct under under crawford under bruton under richardson the supreme court has said that in a situation like this even limit adequate limiting instructions or are not sufficient and i think you know i think that was extremely clear based on the instructions that were the quote unquote instructions that were given during the course of reading that testimony and it's not even clear that those instructions were actually directed to the jury there's really no reason to believe the jury would have picked up on the colloquy that were between the court and basically the government and i don't know if i'm incorrect but it looks like my time is already out q thank  plan to address only to first the improper surprise use of lay testimony by the government to offer the cell tower evidence and secondly the procedural sentencing error made as my colleague said we understand that this is a very serious case but that even in serious cases the rules of evidence in the sentencing guidelines should still be with you do you think that there are any aspects any aspects of cellphone tower location analysis to which my opinion witness could essentially putting in you know records through a records custodian and perhaps some sort of demonstrative exhibit accompanying them where it goes beyond that is where the testimony goes into how cellphone towers operate how cellular network operates technical details about these operations did your client object yes there was actually extensive colloquy the scope of the testimony he objected to all they objected all of the testimony they the argument essentially was that this had been discussed with the government prior to trial and that it came as a surprise to the counsel for both defendants that that this testimony was being offered and that it was being offered through latex the money the district court allowed it in for a very narrow purpose which was the purpose of what the agents thought why the agents conducted their investigation but then in rebuttal summation the government essentially drove a truck through that hole that the government and its our the district court gave them saying that we know that the landlord was not responsible because the cell tower evidence shows it which is well beyond what the district court allowed the cell tower testimony that it was harmless for example that a handset will jump to a stronger signal even without physical movement that's that's not deck directly related to the location of  is a cell phone and it could've even then unfavorable to schama since it tended to to suggest perhaps that it is not straightforward to gauge the location of a of a cell phone based on the location of the tower to which the phone is is connected your honor we we would say that it isn't harmless error here and the reason for that is that even though perhaps certain arguments could have been drawn from aspects of what your week testified to there was all sorts of other evidence that the fence could have offered had it known had it been disclosed under rule sixteen and had or had there been an adjournment granted at that point which was one of the things requested by the defense the question isn't whether there was sufficient evidence without the excluded evidence but essentially whether the this court can be sure that the error didn't influence the jury in a case where the three witnesses were very flawed cooperators you had an x vengeful girlfriend of my client's son you had a drug dealer who was never signed to a cooperation agreement basically just given a pass for everything and then mrs batts a woman who changed her story after being threatened by the police this was the forensic independent evidence it was not o corroboration and it ruled out the the main defense i would have liked to have it also addressed the sensing issue but i do see i had if just in a minute ok i'll keep it very brief your honor and i appreciate the court's indulgence  the defendant was sentenced based on the guidelines range that included the multiple count unhandsome and and under section three d one point two of the guidelines in commentary no two it states that where society at large is the victim of an  offense you you group you don't do a multiple count and hanson and although there were obviously three victims of the murder of the arson that was committed by my clients on my client was not a principle he wasn't an eight or in a better he was in excess underlying victims of the underlying offense and that without the multiple counts enhancement my client would have stood to face a lower guidelines range how do we know whether the excess rechargers actually involve substantially the same or conviction for obstruction of justice these are all offenses against the justice system not particularly against these three people in my client drove his son away as it's alleged that he did he was had no idea whether there were no people in the house three people thirty people it was a crime as it was charged by the government not as a principal not as an aider and abettor but merely as an accessory which is a serious crime and he should get a serious sentence for that but he know if let's say if if expert testimony is required on some aspects of cellphone tower locational analysis and not others how should we draw the line l this case the line was drawn appropriately i suppose in case going forward it would have to be on a case by case basis in this case while in cases i've used experts for instance in a bank robbery we're tracking the fugitive his flight from a certain area to where he might have been apprehended or where evidence was later recovered i think it's undisputed nights to governor certainly agrees expert testimony is appropriate they're using cell towers the space of the cell tower and the intricacies of that analysis would be a  nose kind of cases in other cases here it was simply mr joe when he came to court looked at the company's phone records had certain columns flip phone number was called with phone number was used to make the call what time it was made and then another  where it was located what he might say i mean when you talk about the tower being many miles away or many sectors away you're still trying to yours need to know something about the radius don't you that's if if the tower was an east haven connecticut or a town next to new haven perhaps a becomes much closer question but this was in new york it was in flushing queens new york i think common sense would carry the day in that arena and that particular situation which of which was the situation we had in this trial as we've gotten closer if if mr the landlord's phone pinged off any state in connecticut celt or we probably would have looked at that with an expert as opposed to simply the business record say flushing new york and i think in closing just a skull as a circle that point i don't know if i drove a truck through the hole but certainly i think is a reasonable inference to draw from the fact common sense again to the jury and mr she must to testify was cross examined one of his workers who was on the phone with them that night at one forty in the me that the records person certainly tried to explain was allowed to spleen the way in which the cell phones interact with towers that's not within the camera records custodian went beyond the records dystonia it actually though i think if anything in the north of the defendant's benefit in that it allowed for the possibility that the jury concluded wait a second he's fifty's cell towers don't the phones on always go right to the nearest cell tower so it's possible that the fall it was not in the very close proximity to the flushing queens tower that true akey identified and i think i want to bring that up for the jury only because they didn't want end of the day this goes to whether mr natal committed the arson and in the trial record the jury had among other things mr nepal's tape recorded statement to gabriel vega that he burnt the crib down  set the fire that we had statements from the top to watch out mendez that they go overheard we had the towels own statement recorded from prison to his girlfriend that from my voice is on the phone but it's there because the government had my voice from another recording and spliced it into the recording were trial counsel argued that mr of a go through his voice and pretended to be mr without the limiting instruction violated rule for all three what's your response thank you i don't think it does it was the court was very clear two points to tell the jury that these statements none of the statements including this one were offered on the arson or the attempted arson and one is your honest question i do want to back up for one second because there's certainly a thread through the briefing in the  arguments morning that the judge really didn't instructed jury about the arson the fact that this disinfo this testimony this evidence was not coming in as the arson if you look at the joint appendix at twenty seven sixty two and sixty three when judge order to instruct the jury the second time she did twice during the admission is evidence that the grand jury testimony was not to be considered for the arson or the attempted arson that second time was prompted by defense counsel requesting her to do that and requesting defense counsel said no your honor is already instructed the jury once which we could do it again and i was there that day and i read the transcript and in hindsight i said what was going on and i was never that the judge was simply talking to the lawyers without looking at the jury judge arjun's a very careful jurist and i think that that site to twenty seven sixty two the transfer confirms invents counsel's mind to the judge did tell the jury this stuff is not to be considered on the ar but to get to your question your honor i don't think it's just that mr morales's testimony was really indicative of his furtherance of the obstruction conspiracy he was giving different accounts as to why he called his son right out of one thirty six in the morning as to why the fire when the fire was raging to see whether he was there and in any admitted that his son was a close call kendall your honor i think if this court is to start from the premise that an accessory after the fact is absolutely at all in all times a crime against society and i think my colleague my opponent has the better of the argument i would respectfully submit that accessory after the fact is not always simply a crime against society in general if you look at the guidelines in section three d one point two it's start and start it's doesn't start but in the middle  application no two it talks about the concept of if there is no identifiable victims for example a drug or immigration offense in this case the word identify of a victim sadly three dead people were born burnt horribly in this arson and if the court is to overturn that sentence and send it back for a new sentence as a prosecutor with responsibilities to victims we have to call all three victims or their states we're not going to s been harmed so no need to alert people to a new sentencing proceeding we're going to call those the rover since the eight year old boy but the twenty one year old woman and the forty year old woman all of them in their families would be called so i think there are identifiable victims and if if the court goes beyond the notion that accessory after the fact is simply a crime against society in general then i would respectfully submit that the guidelines do allow for an accounting of the entire harm done is it your view that the district court made specific findings that morale is new or recent he should have known that the three three deaths would result from from the arson yes you are because he was busy as he was obstructing the you judge to respond to the the question about the the impact of the great both the grand jury testimony and the rest of more alice's statements that were introduced i just think you know there's a prior case of this court i believe it was jones when the court referred to the that it sometimes is just unrealistic to expect a jury to perform mental gymnastics and ignore powerful evidence despite admitted despite jury instructions by the court and i just think that looking at this in its totality that's the situation we have here the part that your honor  government about where has even more to it if you back it up a question and in that answer mr morales it almost implies that he knew more information and it easily could have led the jury to believe that it was simply the fact that he had been accused of the crime a year ago he will says he heard somebody mention his name and easily could have been taken as employing the had some sort of inside information furthermore without also look at the fact that the government was able to her house and off and that he should essentially take the weight for the crime on behalf of his son so that you combine all these things and mr murray realises becoming an extremely important witness against mr nato all without ever having to testify in court and without ever being cross examined by mr nato all and you know again the goal going back to the the metaphor that was used this was really driving the truck through the open seems the government had not been able to restrain itself during the grand jury presentation from cross examining mr moralities in terms essentially to bury mr may tall and then that comes in so honor just briefly first with respect to whether an error with the sell side issue was harmless error it's not a question as i think the government may have been framing it of whether there was sufficient evidence apart from the inappropriate evans the question is whether we can be sure that the error did not influence the jury and i apologize if it was inane summation rather than rebuttal if i was mistaken but just looking at how it was presented to the jury i think should should demonstrate that this was not harmless error the government says about should we know he was in queens the night of the fire and we know from the cell from the representative from sprint how cell phones work and later in that same portion after reviewing what the records showed he said i don't think there isn't any that there is any dispute that mr shaw was not in new haven and that really cuts to the center of it they use this to argue that the defen in this case was or one of the defense in this case was indisputably wrong on the subject of the grouping analysis the language in three d one point one zero three one point two no two states for offenses in which there are no identifiable victims e g drug or immigration offenses comma where society at large is the victim that's what we're saying here that the way in which the government charged this case they could have charged if they thought it was provable that he was nater in a better under section two they chose to charge him as an accessory and as an excess or it falls into that parent that a call that although they were obviously victims from the arson the victims from the accessory offense are not the same as the victims from the arson i see my time's up thank you thank you off the arguments the court will reserve decision thank you