mr st louis i never stepped foot in the united states he was extradited here only exposure he's had to the criminal justice system was sitting in alan's in years jail and then sitting in a courtroom for trial we believe district court  d from a juror's bond i'm especially after they've seen the victim and have seen the emotional dynamic of that victim and then to hear the words rape come out of a criminal codefendant who's been convicted that rang the bell and the government or first group as a blip submit to the court blips do not are not precluded from trials they're certainly not granted or sustained in motions in limine blips are not something judges identify as highly prejudicial prior to the trial lips don't need a judge to disregard and state that it's a good thing there was follow up to say that your clients weren't the perpetrators in the trial but are cases legion tha point when you see again what we've heard was a blip and some of things are on the record a blip doesn't change the expression of jurors faces it doesn't change their demeanor it doesn't make the clerk sitting next to the judge eyebrows pop up because they what can you do to cure my point is that when all these things have already happened once the you see the belt it's really clear none of that actually you don't have any evidence or you just described here to speculate now but if it isn't the record that this blip required the government need to raise his voice over the his own witness which also again i would submit is clear on the record to show that that and even the court mentioned you raise your voice loud enough that they hear that but y why i think the case law comes in is that when something like that happens in so prejudicial over any probative value it change the dynamic for the defense attorney and his strategy for defense when you have a client who has doesn't speak the language has never been here not he would have to defend himself against again the risk the risk because it came out in the boat was wrong whether or not my client would sit there and think he needs to defend himself as an issue and you can see in the record on the in the transcript specifically i needed time to speak with my client about whether or not he was going to stay in africa are there any affidavit or other evidence that he we didn't take the stand because of this exchange no i don't think that's he's the only question the these this case facts as to what was going on the dynamic the witnesses beforehand leading up the dynamic that occurs during that point at what point this is towards the end of the trial and this is their grand and have to prosecute the assault assault right so that was clear and the bell was rung in the follow up question that ok well these guys here didn't have anything to do with that right clearly shows and give the court issue that something was wrong also that was unnecessary thank you i miss expired you can thank some of your hope your colleagues time now i think that's all but i would just if i may just i think that helped in language at the end was that it's true even evidence of guilt and full of prime defense are entitled to fair trial competent evidence and the charges that they're charging the appropriate charge corner cheney counsel for appellant reese tool and if i may if i can just finish up with that last issue speaking with respect to the evidence of rape coming in even though there was a on the alleged rape victim who is miss auburn who testified and testified confidently about an assault and there was an issue with what she was saying in her testimony and then you have missed auburn who is the alleged rape victim in this case and record although it doesn't specifically state in the record that she was crying on page five seventeen of the joint appendix the witness even though she's done her testimony she keeps saying i'm sorry the court was telling her it's fine and she can leave and then you see in the record that we're interpreter asking permission of the court can she help the witness out of the courtroom now obviously the record doesn't have the same drama as what actually happened in the coconspirator who what the final witness in the government's case and we had already addressed again with the court issue not me making sure that no evidence of this rape came out of a witness and then time but that evidence obviously was heard and we believe considered by the jury and extremely presidential to your question about what the court should have done i think given all of that talked about someone pulling up their pants we had another witness that actually used the words and then you have the actual alleged rape victim in this auberon who was unconsolable and work with the record who were plaque that she needed help coming out of the court room you know so i believe on that record of all of that the court should have run our motion for mistrial taking into account its previous comments that the reason why the court was not going to allow any of this information to come in i because it was not intrinsic to the case it was not relevant and that was how it prejudicial to defendants in this particular case so if i can move on to another important issue that came up in the case and that was the issue with tulan however the evidence came out on us in the record that they that the haitian law every citizen has a photo identification card and the f b i certainly could have gotten that photo and use that they also could have received photos photograph in a digitized way to use it in a photograph so i know you've got a little bit more with respect to this than just where the raid was set up if that's all that you have in this record is that enough it's just that this was an illusion just yet i think yes and the way that the photo array was set up as well and also when you look at the factors that we just go through the factors under the bright weight class or factors you have the opportunity this goes to the reliability but i think the court can take all that into consideration the opportunity of you suspect there was no evidence that she actually sides made the degree of attention at the time we were cement there was no doubt to prove intention but she didn't see his face and wasn't able to make it ahead of time for you please give a description of the suspect in canada way also her level of certainty the government and the f b i took no confidence level testing with hard to determine if she's one hundred percent sure thirty percent sure forty percent sure it was him as a matter of fact the record position is that she didn't and then if i missed school and she just referenced the fact that she saw the photograph before when she was shown the rap poster by the haitian by the haitian a average viewer most of these people have memory loss because of some kind of significant injury in the limitation on that the mineral doesn't want to see the rule doesn't specifically say but if you take this rule and  compare it to other rules dealing with prior consistent statements there is an order to the evidence and when there is a witnesses unable to provide a statement and there's another witness that can go back and put the statement  pleased to court this case is unique among many prior identification cases come before this court in that the victim is fergal is held for a week this is not a bank robbery where there are considerable concerns where the teller only sees the suspect for a moment this  faller where good tracks are noted that the person in a restaurant adjoining the howard johnson only looks through the glass for a few moments is fergal is held for seven days and unlike common kidnappings or abductions she's held in the room with her a uctors and they are not isolating her she is having conversations with them and they are detailed conversations about the negotiations about the amount of money she's even allowed to get on the phone to talk to her family to encourage her release this goes on for days and so you have an identification situation where i would argue it's almost impossible to conceive of a situation where a spread is unduly suggestive however i was not aware that our joint appendix was filed and everything was black  you make a lot of valid points about the length of time that they had for all of these folks and all of that is i don't speak that but the bottom line is when she was shown the poster him because he was in the post i find that very problem which couldn't be that similar situation where agents are using the same photograph multiple times in full and they have some urgency and i would dispute with the  in haiti he learns of the earlier american who was taken and then she has already returned to the united states he then as quickly as he can within a month he gets up there shows her spread did not know a poster was done and you honored submit your post question the poster is a commercial product this is not bank footage this is not arrest photograph nor just to defend the haitians which for a moment it is not family photographs taken from the house where she's hel music program poster promoting a band where people are showing the continent so this individual is not any weight in court with tory judge or grady said and found at the lower court that continents of the individual if anything it just required a witness  closer at this photograph there was nothing about the continents saunders from the fourth circuit says jarring when they make and we're the ones who go into a footnote it was an opponent's brief but this is not a jarring photograph it is then true come to the trial the spread is she looks at the spreadsheet identifies two out of three in sequence one two three then she says i already identified these two from a poster presumption the way i've argued this case to the jury and in motions is that she picked mr tulan out of the poster if you look to the poster what's on and she says who's questions on when she's so in the poster what spawns name floats between a person with a small afro and a person with dre and so it's not entirely clear that she didn't pick coolant she never testified either to the f b i agent september of two thousand and twelve or in the court room that qwest sign is who she was when she was given leading questions by defense counsel she said i picked questions on i pick my son it's not clear who she's talking about she has it is certainly clear judge upgrading made it clear on this trial record that in front of her was the f b i spread and the poster but she's not telling us which of the individual quits on that she's picking defense counsel didn't push this any harder i want to make a point that she was processed salmon very extensively and first by mr hassan who asked her if mr st louis was really the man in the in the photo spread and saying the man  not him she adamantly said the man in front of me is the one who abducted me so it's not beyond the scope it was all fair under the rule and then strategically defense counsel for mr tool and did not go that direction instead she used a few serious questions about his son not making it clear to anyone who has done is you know i mean i didn't go any further on redirect that certainly would be plame to me as well because i knew i had cooperated coming next who would identify although that process became more protracted than i thought it would you know if i could move to one other area because it's been a lot of time here about the one word i want to make a point this court supervises a number of courthouses in a lot of district court in alexandria where this case was tried the witness box is all the way removed from the jury that's relevant to the points on appeal here in other words the word to the extent it's being heard would have to traverse the entire width of the court room which is the judge grady said i don't think the jury may have even heard it because in judge much credit asked me to lower my voice the last time i appeared before her i can i can be very loud and i was afraid of my second courtroom it would have occurred with two tables filled with counsel me standing at a podium in the judge found there that he didn't believe the jury had seen that i think those findings are better understood if the court appreciates that this is one of the court rooms where the that she said i've already identified those two people in a poster and that's recorded in three o two and you say those two people who didn't want to she only said those two people that i not a problem at all well christiane is not on any of this cross on is only on the poster floating the source of what's on just to give the court the global view of facts there's a haitian police report and they show to the poster where they corroborate that and in the poster what's unclear is whose question on she says that on the stand if you were to review her testimony on cross with miss cheney there are only three or four questions and she feeds her like four  and perry i think is exactly on point we don't take evidence from juries we use cross examination and we explore all these confusions in all these points and we let the does your juries in our system reserve all the dispute between the parties as to separated in time they had all of that and they resolved that justice ginsburg says that is what we guaranteed in our justice system there is certainly confusion the other point i would make there is no protection to be given by suppressing the identification this because the posters display was submit it's unreasonable in a situation where the victim we're speaking i was held for an entire week up close they weren't wearing masks she testified that caused her to conclude she was going to be killed because why would you release a victim who saw your face for an extended period of time was involved in negotiations was talking to you face to face under that context why would any court believe this is not the bank teller this is not the situation where a person's glancing through a howard johnson window this is a  believes they're going to be highly attentive keen on what's going on and for a very long time we're not measuring it in seconds we're not measuring it in minutes and she makes the identification from a six pack f b i photo spread june abduction after eight days and then september of two thousand and twelve based on the photographs we give you that she makes a selection from what i believe or include certainly the district court did and i believe the jury did was a fair spread there's nothing jarring about m was not part of the plan it was not forseeable and the defendants on trial had nothing to do was it and were furious about it having occurred which corroborate the detail that mr tulan was the source of this family he and  the cooperate was dealing with somebody through a door and that they were bringing money for a clinic and he had told our cooperate or the money was coming for a hospital those kind of details are richly corroborating the victims were held for information on the record that tells us that the witness was recalling seeing the prior photograph when she said i remember seeing this picture in the wrath of her we don't have to speculate about that we don't have make that a fusion clear in trial in any kind of way if the government misheard to what the government witness they had the opportunity to essentially ask her about it encourage and vacation we still do not know why the why the government did not  attorneys but i've never had a case where the identification in court did not come in and it wasn't at least asked for tried and so we just don't know the answer i believe i'm a liar i believe my time has expired so i would submit on a free for the rest of the argument here thank