the first case on the calendar is united states v robert kidd big leo and we're ready to proceed party's invocation of the fifth amendment has no evidentiary value and may never be considered by a jury and yet we know that in the context of civil litigation such an invocation is both it misses and may be may be considered by the jury in order to draw inferences and so i think one of the conundrums that's at the heart of this case is how is it possible that evidence that is probative and it miscible in the civil context is considered to be irrelevant and have no evidentiary value in the criminal context when the same rule of relevance applies in both context was that argument made to the district judge the analogy between the civil cases in the criminal no i don't think that specific argument was made this this analogy that aren't currently making counsel clearly did seek to call the witness to testify and to invoke the fifth in the presence of the jury but the analogy that i'm presenting i don't think that argument was presented by trial counsel didn't from our year in fact say we're not going to argue that the skill to and you can give an instruction judge we can draw no inference isn't that exactly  what you're arguing now you're correct your honor i think that did happen on the record look for happened in two steps i think first what happened is counsel sought to have the witness invoke and when the judge said there's no way that's going to happen i think as a fallback position that counsel suggested well maybe the government should come up with an instruction etc i also want to point out however though that the government has never advanced a preservation argument in this appeal and i think under this court's established authority the government waives any waiver argument by not pressing that argument so i i think number one i do believe it was adequately preserved and number two i don't think that argument was raised by the government but when you talk about probate it well you i mean it's well settle  we know in civil cases clearly that a jury is allowed to draw an inference right so you know they're obviously sure about four hundred three balancing test here in the judge allowed to consider all these things but to say as a per matter that there is no evidentiary value in that the jury can never hear this type of testimony is where i think the error came in i'm not saying that this type of testimony always has to come in i understand that there are risks on a decision of this  court making that determination correct absolutely and i think you know deutsche is an interesting decision because it says a number of things some of which i think are self contradictory and in my own view i think it's a case that sort of begs for clarification on the one hand actually correct which says at some point that the jury shouldn't consider the invocation to have evidentiary value but then right below that it says the district court has to conduct a thorough three balancing test which in my mind is sort of a strange thing to say there's no evidentiary value why do you need to conduct a four or three balancing test and then even further down in the paragraph there's this line and i want to quote it says we note however that this danger of its undue prejudice is not so great when the defense rather than the government seeks to draw inferences from the witnesses silence this difference must be borne in mind when determining the proper balance under four of three so now suddenly the court is saying well when it's the defense attorney seeking to introduce this type of evidence it may didn't do a thorough three analysis but the by relying on do at it was the same facts why isn't that in effect for a three analysis you know the government cites to a number of cases that basically say from the circuit that when the record is silent this court can assume that the lower court conducted that for a three balance it's essentially giving the lower court benefit of the doubt the problem is the record is not silent in this case from the very first moment that this issue even came up the judge said there's no way that's happening it's clearly adopting what was a person who stands before even heard what the testimony was what the witness was what the significance was what he did hear the testimony outside the presence here he did to ensure that the entire each was part of the argument before the voyage was part of the argument that is correct your own i mean i also am having difficulty seeing how there wasn't it what amounts to four or three ballots here even if it wasn't explicitly referenced and i also would like to ask if you could address whether whatever we may think about that question why on this record it wouldn't have been well within the district court's discretion doing that the helots to decide to exclude the assertion the privilege i think you know there are circumstances where i think one of the main concerns that a court is likely to have under these circumstances is that a defendant is essentially gaming the system right that you're you're calling this witness in collusion to somehow get the jury to draw this inference but if you look at the record i think it's very clear there's an adversarial relationship between mr critically yano and mr roy and when his attorney seeking to cross examine him mr royce is almost contemptuous you see that i'm running short time and i want to make sure that i address sort of the second half of this equation because there's this second ruling that the court makes after excluding the invocation of the fifth it says also we're not going to allow you to call your own defense investigator to questions is he in the house is using the computer does he have the passwords is he using child pornography and then when he answers those same questions in an incriminating fashion to the defense counsel the court finds that it is somehow not contrary to his interest and i don't know how you reconcile those decisions if there is context you when you look at the question and lenders just consider the context absolutely your honor and the investigator went to see him prior to the trial correct that's correct and you don't know very much about that other than that he asked him these questions in the i'm not i'm not sure if it's in the record but i think in your reply brief there is some statement about he told him he was looking into claims that  guilty not that roy had anything to do with it correct that i think that is correct but what is so telling about this exchange is yes the series of questions were you in the house yes it was in the house was using a computer yes he admits he's using a computer yes he is the pas these things essentially put it at the scene of the crime and the last question mr wants were you accessing child pornography mr roy says you know what i'm invoking my fifth amendment but that's not how it goes to mr royce's own guilty conscience and his clear comprehension of self that these questions are implicated he clearly understood that these questions were contrary to law why isn't the difference between the fifth amendment protection and the issues relating to statements against penal interest the difference between  statement that might lead to cross examination or might lead the government to information that might then indirectly inculpate someone why isn't that an adequate defense to explain what happened supreme court says is you have to look at the statements in context and it gives this example of saying or it offended it mit's sam and i went to joe's house right in the supreme court says well if that suggests that  he was involved in this conspiracy if it can be used to establish that evidence and then that is contrary to his penal interests what the supreme court says even statements that are on their face neutral may actually be against the declarer's interests and i would submit that's precisely the situation here and mr royce understood that i decided to this i thought was an interesting tenth circuit case that says when you have evidence of the subjective belief of the witness that a statement is against his penal interests that ought to be controlling because really that's the purpose of the rule is would this person have made the statement but for the fact that it was true and and so new explain just what it is about the context that you say supports the trustworthiness of the statements here because i understand your argument then if i'm understanding it correctly you saying the answer to the final question we're i'm not going to answer that question tells us that his answers to the prior questions were he knew what he was doing and you knew that this was not  interests but couldn't you argue with the reverse he didn't know him answer those questions but when he's asked the final question he says i'm not going to answer that question because he suddenly realizes it might be  you realize that final question isn't helped or even certainly the questions leading up to that right which place him at the scene and give him the ability to access that child pornography or inculpatory as well that this is at a point in time before he knows anyone accusing him of being the guy who did it well trial than a time he got to trial and presumably knew that mr conigliaro no his defense was going to be that it was roy it's not him at this point in time he doesn't have a reason to know that or you haven't shown that and it's you're the advocate of this rule so you have the burden of showing it well he certainly knows at this point that investigator for mr figley is on trial for accessing this material and an investigator representing mr bigley i know has now shut up his house to ask him questions about whether he himself was using the computer so it's hard to me the reasonable person standard or the subjective standard of mr royds it's hard to conceive of how he did not understand that these were hoped or in his own actions i would submit indicate that he did very clearly understand that these statements were contrary to his being interest discretion either with regard to the way it handled the invocation of the fifth amendment by mr royce or the evidence here issue under rule at all four of the federal rules of evidence first of all with regard to the fifth amendment what the district court did in this case to make a determination as to whether or not mr royce would be allowed to invoke the fifth amendment before the jury was precisely what happened in this court's decision but you would agree would you know that it would have been better at the very least if the district court head explicitly undertaken a form of three analysis yes you it would have been better if it had been explicit however all the arguments were made to the district court in this court has observed on many occasions that when arguments are made specific arguments are made to the district court and the be able to infer should invoke the fifth amendment before the before the jury and is it your view that it has no probative value the assertion of the fifth it has very little probative value and certainly that's one thing and  my opponent tries to drive that home in terms of well what else could the jury have inferred based upon the invocation of the fifth amendment by mr royce however that there's pressure in someone invoking the fifth amendment before that before a jury there is built in prejudice in that and i think the court has recognized and recognized that certainly in deutsch number one no one can cross think as the court and i haven't looked at all those civil cases but i think it's the court has as as your honor has has observed it all depends on the context it depends on the context and you have to make that determination so across the board here to say ok you know that this should have been allowed that the judge abused his discretion by not allowing this to come in that doesn't put it in the proper context an opponent argues well jeez of course the jury what what else was that you're going to do when he's arguing that this mistake was not harmless he said well of course it would have affected the verdict because what else with the jury have decided with regard to the invocation of the amendment the conclusion is almost inescapable that it was roy's who was doing this and not typically first i disagree that that necessarily means that since more than one person can be accessing you know only speculative  you have a situation where just that fifth amendment just sit there is is without the ability to cross examine cross examine about it and the dramatic implications of it you've got someone in the you know the jury kind of not  arises if the invocation of the fifth and then that has probative value more or less depending on the context that there may be situations where as a matter of four or three it's appropriate think it depends on the context judge you know you do agree that there are some contacts with that might be appropriate there might be some context in which that is appropriate yes your honor not this one not this one and in i mean in terms of the judge conducted did not abuse his discretion to make a determination that this just wasn't going to happen that this was not going to happen that this that this this this witness was not going to get in front of the jury and  invoke the fifth amendment given the context of this case and given all the well i've spoken things and i'm taken by as the statement by defense counsel that i'm not going to even argue that this forth in his brief that the evidence against mr bigley i know was overwhelming so that even if even if this was an error or even if this court finds that there was some error in what the judge did in determining that mr royce could not testify before the big beef before the before the jury about the about his indication that there was overwhelming evidence but in addition to that you also have the situation that but in his closing argument defense counsel said it could have been a number of people it could been a whole bunch of different people it could have been his father who lived there it could have been the other gentleman rosie rich marosi and kept referring him as the big guy access to the house but from the defendant's perspective would have been extremely helpful to have an admission from the witness him self that he had access to the house into the bedroom so and could you address the argument that having ruled on the fifth three b three issue the fifth amendment issue is if the fifth amendment inquiry is much broader a witness can't be compelled to be an individual can't be compelled to be a witness against himself in terms of four hundred three it had to have so great a tendency to expose of the clearance to criminal liability that it was that that that it wouldn't be true what he would say if it wasn't true so there is that different standard there is that different a different standard and again here the district court did not abuse its discretion in making a determination that these statements and it goes through the statements that we have these set forth in our brief the record is very small writing and as you see i have put these readers on to see it but the the specific statements have you ever  the statements that mr that the investigator asked him at any rate went to as you know did you did you have access to the house did you have access to the wireless did you have a password to the wireless  connection and of course the question did you actually recycle everything i'm not answering that question but as the court has observed you know there again in the context of it you've got a situation where asking all these questions about you know bo sure i do have you been to his house yeah i was at his house did you have access to to the wireless there could have been a lot of reasons why they had access they could've been watching netflix with the wireless and then when hey did you down on child pornography then it's like well i'm not answering that question is this will expose me to criminal liability so there and i think that's the analysis that the court that the court conducted and there was no abuse of discretion in the manner in which  there may be a court judge there so you agree with me i i i i understand what you're saying judge which is appears to be a little bit inconsistent with the language of the rule saying that he has a greater tendency to expose declared to criminal to read the plain language of the of the room i'd conclude one thing but then i look at our case law and i i see that we said something materially different far be it for me to call the court quirky but i think  to criminal liability  i think judge if if you were to say i think the easier way to make that determination certainly is even if there was an error it was harmless i think for the court has made that observation that there really i want to briefly dress harmless your point because i didn't speak to it before this wasn't as the government suggests an afterthought or one of many defenses that mr critically on a went to trial on it was his defense when he went to trial if you look the first line of defense counsel's opening statement he told the jury it was steven rowing told the jury we were going to prove to you that mr royce not only had access to the house that part came in but that he used the computers and they access to the wireless and of course the court's rulings prohibited the jury from the or ever hearing that evidence even though it existed and so you know the government points to the closing statement of course at this point the defense has been  course at this point you can't fall back on the roads defense anymore so out of necessity at this point i think defense counsel is almost looking for something to say because the defense that he walked into the courtroom with was taken away from him this was not a harmless error the defense was deprived of his sixth amendment right to present a defense it was a real defense it was a plausible and valid defense and i'd like to point out that when you look at it at the specific counsel the government's main argument here was that there was evidence recovered showing skype chats under the name bob can pick that closely matched up some of the street chats which the government agents had with with snowie twenty three but if you look at the specific counts if you look at the specific distribution counts i think there's five distribution counts on four of the days that the agents hooked up with the snowy twenty three and received evidence there were no chance going on whatsoever and so there's no evidence identifying evidence on those days who was behind the computer now the government in at least the supplemental briefs aims to say well maybe royd was using the computer too for these purposes but that doesn't mean that mr  if there's a laptop or wireless at the home he denies both of those things a wireless network is found inside the home he tries to distract them and this is the story right there the government and by  going up to the attic but then they find the wireless network in his home they find the laptop on his bed there is a password that's associated naps so far as i can recall with  to come up with all this all these facts all these small details to impersonate miss to quickly and i think that that was the thrust of the argument in addition to the current argument that determine if i think the point i was trying to make is that if the jury had access to this information regarding royce there's basically three conclusions they could have reached they could have reached the conclusion the main defense that was being put forward that was roy's did all of this and set up mr correctly and i understand your honor is suggesting that is an unlikely conclusion to every each but there could have been a second conclusion a minimal minded thank you and there could have been a second conclusion which the jury reached and that is denied the ability to present that evidence and make that argument and that's the point i was trying to make thank you thank you both i will take the matter