united states versus no made please the court my name is susan walsh of logic rascon and clark on behalf of the defendant appellate ralph nolan your honor as we know today that sixty nine percent but it's still very beacher factor but i wouldn't rest much on sixty five percent it may be grabbling to two is lois forty percent for argument's sake if it's forty percent of defense counsel going into a case that hinges that the crux of the case is on the identification your honor must do everything the fact of counsel should do to protect against how potent and persuasive wrong identification can be too late my question to counsel was not an adequate you have very strong arguments i think that counsel was inadequate but putting it assuming that for example the direct evidence and the circumstantial evidence confusion remind me what the defense counsel asked for a hearing and at what stage the defense counsel of things you cancel did wrong but how do you say the district court did anything wrong the district court failed to recognize that the identifications were the crux of the case and that the failure to adequately litigate them resulted in prejudice that the district court went to the prejudice problem and said even assuming forgive me are you saying that defense counsel makes a motion for a hearing and then withdraw the motion that the district court in these circumstances still has an independent obligation to conduct a hearing he may have the opportunity may choose to do so we're saying he must do so i think that the issue no i don't mean to miss a mistake or overstate it i think the error in the district court's analysis that were before the court on on the ineffective assistance of counsel is assuming your hypothetical judge rakoff that there was ineffective assistance or below the reasonable standard for now maybe maybe you misunderstood my point i'm going to have a lot of questions for you having surgery on ineffective assistance of counsel because i think you have raised a lot of good issues here but you independently are claiming a sign or standard that even if there is no ineffective assistance of counsel or not enough to rise to a strict one level that the case that the appeal should still be granted and the conviction things the st issue i think is because the district court ruled on the two thousand two hundred and fifty five that there was no prejudice that was there secondly the district court allowed in a photograph of the defendant posing with what appeared to be a handgun thirdly the district court prohibited relevant probative evidence of alibi that would have not only bolster the misidentification evidence it would have gone straight there is something like a psychological alibi for one a person who is preparing and packing with their own father for the next day's job just hours before assuming it's hours is just that we couldn't pinpoint the exact same see a notation for psychological allegory or you know i think those are just the artful way that the th circuit her expressing it and that it is not precisely the moment and there's very few people that can say precisely the moment where i was for an alibi but to exclude it entirely i think was ever because as the government suggested trial it was front door a back door side door every which way door alibi and it should have been noticed and it should have been let in because there was no reason not to either have a break in the proceedings or the government could investigate this if they needed to one day there were rather than to preclude a th amendment right to present is a complete full defense that corroborated misidentification that went to the heart of the defendant's mental state that also there was a rd issue that is why alibi is corroborated forgive me it corroborated the very videotape statement that the government claimed was a lie all of that evidence should have been put before the jury so that they could see a complete defense and that facebook photograph blown up in isolation play during the videotape nonono bleak reference photo a cover photo of the defendant posing with what looks like a gun yes it's somewhat counterintuitive as is the confident idea witness your honor but i'll address the the force that i don't believe so on a purely legal level i don't believe so your honor and here's why what the davis and the barrett two cases require is that we have we approach the statute categorically in analyzing all we have to look at the minimum current criminal conduct necessary to convict and i submit your honor that the the minimum criminal conduct knesset or sorry to convict does not include force the brandishing statute says use yes you can reconnoitre but there is a mental element there's an intent element judge sac and that is you have you can you can grow up without intending the use of force and here so the robber the would be robber who i agree completely and i think that a purely legal analysis as you have so aptly described it perfectly under the categorical approach this attempt is not a crime of violence because you have to have both conduct and intent and if i may if i may and if you indulge me with a hypothetical there would be robber who surveils with the intent to threaten with an empty bluff is that the use of force most definitely not with an empty bluff of force is that the threat of force no it's not why because as judge raker points out in the alston decision you have to communicate well it's with the intent most respectfully is reconnoiter with the intent but i think if you look at the minimum conduct the minimum criminal conduct necessary the empty the empty threat has the it's in it it's well and well then you have no you don't have to you have no conviction because you have to have both to have a substantial step plus intent so if you only have a substantial step t may please the court i'm assistant united states attorney richard cooper i represented the united states below and here on appeal if i can go st to the davis attempt issue that judge sac was was just addressing in the hypothetical ordering robber in that case what you would have under the present of this court is an individual who has formed intend to commit the entire crime and taken a substantial step now underhill correct now underhill that reckon ordering robbery has taken a step in the direction of what this court has recognized is a crime of violence hobbs act robbery however completed is categorically a crime of violence in that situation well this this court has previously held each time it's considered whether an attempt to commit a substantive crime which itself is a crime of violence that that intent is also a crime of violence that's perera gomez and the other cases that the correct although we would submit that the distinction between those two for this court's analysis in this case doesn't make a difference the question here is whether the defendant formed would was stopped on the threshold of the robbery which would be the same case under hobbs act robbery whether that reckon ordering robber or start whether the substantial step was just conducting reconnaissance if that individual stopped on the threshold of the bank or of the of the apartment they've still committed attempted hobbs act probably just as under new york law that person has committed attempted rd degree well if yes yes your honor if they're convicted of that nine hundred and twenty four dollars c count under federal law then they are but that's it that's a sentencing issue which is separate and apart from where they are as a purely legal matter attended hard jack robbery qualifies and that your honor here turns entirely in terms of the defense's argument on whether this attempt crime qualifies under the force clause i would also just just point out that the language in the force clause also does a lot of the work here which is that it's a crime of violence where a crime has as an element the use or attempted use of physical force now read in the way that defense counsel suggest those words at tempted use would have absolutely no meaning because as we note in our supplemental letter brief there's no federal crime that has as one of its elements attempted use of force so if you read the statute in the way defense counsel suggests then the language the congress chose has absolutely no meaning and includes no additional conduct which is contrary to commonly accepted rules of statutory interpretation and so that that language in the in the th clause attempted use does a lot of that work here in bringing attempted ho  hearing pretrial hearing on that issue has plenty of basis for doing that because it was there were all sorts of questionable techniques allowing witnesses to look at a photograph of mr nolan in separate apart from the photo arrayed cetera and then they would draw the request next the they never ask to have an expert this this is an area where news been a huge amount of scientific research over the last thirty years that shows that our common sense notions about eyewitness identification are wrong that there are all sorts of only an expert could testify to like the racial bias that the scientific literature that persons of one race have great difficulty in remembering the fine features of the face of someone of a different race is overwhelming but it can also can't testify to that he can make a cut argument which they did only an expert could bring that meaningfully to the exclude the photo the facebook photo with a gun they least arguably open the door to lat by saying we want their home video and including the references to it address each of the three issues that you're older points out so st on on prejudice we would submit you don't get even to the st prong of strickland because we went on prejudice as judge daniels noted after having observed the trial and all the evidence there was ample evidence other than the eyewitness identifications of the defendant skilled including his admission in a post arrest statement that he knew sean the set up man for the robbery surveillance video of mr entering the apartment building where the robbery occurred just before the robbery with two men who were in the same clothes as the man who entered the apartment and robbed it the defendant's post arrest statement where he needed coming to the bronx from upstate new york around thanksgiving of the ear when the robbery happen the robbery happened in december and he admitted to being down in the area for a period of time through january that  defendant father's testimony that the defendant worked as a cable installer and testimony that during the course of the robbery the robber one of the two robbers who entered the apartment had facility with cable wire such that he was able quickly to monthly instruction on eyewitness identification i have i don't think it was so much use and that's a different issue but went on for quite many paragraphs and then at the ends in that very same context if and afterwards and in all the evidence you've a reasonable doubt as to whether ralph known as the individual who committed the crime charge you must find ralph nolan not guilty no if that had been given in a different context i would see your point but here right after literally the next paragraph after he's saying all the things you need to consider on eyewitness identification he gives that sentence and i just re is that not telling the jury that at least at that point daniels thought this was the critical issue it certainly was an important issue your honor i see that my time's up if i can respond to that and some of the other issues and so it certainly was important it was an important issue but the conclusion of judge daniels instruction on that particular eyewitness issue was a true statement that if the jury found that if this wasn't a village and you know i'm saying i'm suggesting to you have to put it in context and it to be clear the eyewitness testimony was important in the context of this case what the district court found in his opinion in judge sanders opinion then on the two thousand two hundred and fifty five dollars motion and what we're pressing here on appeal as well is that that's not the only issue and that wasn't the only evidence convicting the defense there were these other categories of evidence that we point out in our principal briefing that i just laid out for the court but if i can turn to some of the  being cross examined by canceling any armed with what an expert could have provided them on cross let alone one of the expert could have him so they said you know we're not sure it's  there are certain parts of it which are blatantly inadmissible like a discussion of error rates and eye witness testimony across the board like a discussion of what happens what has happened in other cases that would be inadmissible there were there's discussion of  expressly enjoined on courts to inquire about so that it may have been an issue at the dabur hearing outside the presence of the jury i was addressing whether it would provide fodder for cross examination in front of the jury but just to make one more point  on that particular issue the point that defense counsel presses here are cross racial identification and identification under stress which are two of the areas that the purported expert would have a pint on now a couple notes on that your honor  t there was evidence in the record on both of those issues neither of them is so complicated as to require expert testimony those are common sense issues that defense counsel was able to elicit on cross and argued to the jury and they both were part of the judge's charge on the issue you think it's common sense someone will have much greater difficulty scientifically proven much greater difficulty intensifying the features of a face of someone of another race in this case your honor that's how it played out because as we know cited some examples from the record on page five of our brief some of the victims when they were initially interviewed by the police identified the robber as hispanic some of the victims identified the robber as caucasian you have the issue there is presumably about the color of the skin and there are light skinned hispanics and therefore there might be confusion with someone who is caucasian that's totally different from that when you're looking if you are white looking at a black person or black looking at a white person you may not notice so much you may have difficulty distinguishing one face from another just for the purpose of prolonging this already too prolonged conversation for the court says on the issue of race there is use about twenty sentences before he gets to that about generalities about eyewitness identification and then he said is many factors affect whether a witness has an adequate opportunity to observe the person committing the crime the factors include the length of time during which the witness observe the person the distance between the witness and the person the lighting conditions how closely the witness was paying attention of the person w witness was under stressful observing the person who committed the crime whether the witness knew the person from some prior experience whether the witness and the person committing the crime were different races and any other factors you regard as important i don't see how that tells the jury anything it's just how long she lists but that gives them no guidance as to how that those factors might be of fact i witness identification and so on less you're right that it's a matter of common sense he's giving them no guidance whatsoever i believe that the language of that instruction does indicate to the jury that these factors as the court says and the charge that your honor has read these factors affect whether a witness has an adequate opportunity to observe the person coming you're saying as an expert taking the stand and sang thirty years of virtually at the commission of a crime then they are intensifying the fine features of someone at their own race and you say that that is the functional equivalent it's not the same what you're on or just laid out certainly provides more fodder for argument but i would also point out that on this record what defense council did he he levied a barrage of attacks on the eyewitness identifications including potential cross fertilization between the witnesses that the stress of having the gun pointed in in their face the fact that some of the witnesses viewed facebook photographs of the defendant at least one did prior to making an identification so the fact that there is other yes your honor although on that what happened here was judge again as it indicated that if you was going to go down that road potentially preclude the identifications he was going to keep out all evidence of witnesses talking to each other about who the perpetrator was and about other aspects of law enforcement's investigation and defense counsel at trial one of the theories of the defense was that the investigation was in firm from the start and that there were problems with the way that the police conducted this investigation defense counsel would not have been able to make that argument if he had prevailed on the preclusion motion and of judge daniels had kept out all of those those issues there wouldn't of been any facts from which he could have now entered the principal defense counterfactual which is one of the reasons why the strickland standard looks at the decision making at the time of course in in hindsight that decision didn't work out because the defendant was convicted but that's not the question for this court the question is whether the defense counsel did a constitutionally adequate or constitutionally reasonable job and given the vigor of the cross examinations on the identification testimony and the arguments to the jury in summation about both that issue and the defense's contention that the police basically botched the job from the start that was the crux of the argument that would've been unavailable had defense counsel preston prevailed on the preclusion  the video are leaf you could have made the one what you would have thought reasonable kelso would have done is to say age we don't want to photo come in and we think it's incredibly prejudicial as your honor has already tentatively indicated has very little probative value but we do think parts of the value come in beyond what the government is offering but not including the part that discusses this i mean that was that would be book photo had minimal impact here it was in the context and otherwise very violent robbery where that there was testimony that the defendant himself pistol whipped one of the victims in the head knocking  was important evidence to rebut that exact defense arguing that this wasn't the defendant and then he didn't have the motive or the intent to commit this crime which included brandishing a firearm access to  firearms was a factor to rebut that affects the nd point is it didn't play a key role in trial it didn't play a prominent role in any of the summations it was mentioned it was evidence that the government put before the jury but it didn't play an important role at trial as as as i think both counsel note one of the central issues here was the identification evidence and the facebook photo didn't bear on the identification last thing to have this right that the district court had previously rejected the government's proffer that this was evidence of his objection judge and was granted that motion now what defense counsel would asking are in itself right the rule completely remote recovering that far well we're not challenging that ruling on appeal but what defense counsel got in that last part of the post arrest statement was numerous denials by the defendant that he committed the crime that they were able to get in by playing the whole tape and that they would not have otherwise been able to get in unless you took the stand and it was it was powerful he  denied committing the crime at length he got emotional he has the agents to take care of his dogs he denied being in there in the location of the crime at around the time that the crime was committed all of those things the defense could not have gotten before the jury unless they were able to play the whole tape so this is really a case where they took some pain by the mission of the facebook photo but they got a lot of mileage out of it by getting all of those things before the jury that they would not otherwise have been able to get and under under strickland it certainly is not a constitutionally reasonable decision to make to get the defendant's  except the gun photo didn't only come in through the video it was extracted from the video and it's exhibit five hundred and one as a blow up separate and apart moved into evidence without objection it wasn't just passing reference in the rule of completeness or whatever that was regarding the video it was separate and distributed and published two jury of two up there in lies the problem was referred to by the government and with comfort level with guns and then the tape is played seven different times but what exactly is shown to the jury as a demonstrative during the point is not it's not clear on the expert issue you it's not your stress and weapons focus what we had in this case if we had if this detective had said thank you miss grogan's and here's a picture of the person you picked out have a nice day and left that with her you know we would be up in arms about how suggestive and ridiculous that is under due process you don't leave the photo of the the witness has selected with the witness so they could show it to the other victim see if they put the same person in this photo to show it to your friends look at it a foul was in times and in this case not just the facebook photo as the multiple viewings of s was shown to sandra martinez twice for getting the facebook photo because you have to suspend the imagination to think that these people didn't look at the facebook photo more than twice but but let's do that for pretend they didn't look at the facebook photo one foresman came back to sandra martinez twice with the same photo spread the same one in the same position and it's a next to the government's brief number three that they shift to the other three witnesses number then she's shown a sixpack photo again then she is allowed to look at the facebook photo show it to her friends look at a one million times have the name then in april an f b i agent comes back to her and shows her yet lineup or a photo spread you tell the witnesses do not speak to each other about it you don't say here mrs witness take the photo see a trial and that is what happened here by telling name or showing the facebook photo what ever happened there even if it was the best of intentions by law enforcement it is so suggestive and this jury does not know that because there was no expert to explain about that because there was nothing but argument on that and that is in a vacuum and that is enough and that's what dr penrod's proffer says multiple exposures and transferred mis recognition that happens and there's empirical scientific basis on this no one says i knew one of the robbers into they saw the facebook photo and they didn't say the face that's the robber they said that's all guy from the neighborhood who by the way three people who are picked out that's what miss recognition and transferences do i know this person is the robber or do i know his face from somewhere else in the old neighborhood six years ago that's what an expert can tell a jury and a jury of laypeople does not know about and that's what forty years of science have developed there is empirical basis for why how memory works and how we knows leave people in mind please tricks on you but we don't know how or why what we know now is when a witness comes into the courtroom and says i am confident that's the guy and when the government sums up and says look at their