problem the problem is for defense counsel defense counsel cannot be charged to discovered the brady information of the government is not disclosing that's not the duty of defense counsel and that's essentially what happened here if the trial counsel in this occasionally raise arguments that were not preserved usually not over arguments that were or so when we're looking at the record in this case the objection that was made to the evidence coming in was a brady objection that it was not disclosed by the government right but either way there's a prejudice problem here because once this information about the v p having been shown the photo for trial came out  she was never recalled by the defense to impeach or with that you can impeach or in court it's sort of identification she didn't really issue an identification or testify that the defendant is the guy she said he looks like the guy so there isn't a slam dunk identification to be impeached but there's a queensland benefit identification to be impeached and that was never even attempted once this information was disclosed and to show up was suggestive so yeah i mean i just don't see the prejudice here it would have come out the same way even if there had been a full pretrial disclosure whether pursuant to rule sixteen or brady right if there had been a pretrial disclosure though and all answer well answer the first part your question first i think the reason it wasn't used impeachment was perhaps because the just report after the motion from ashara was made originally i think it shocks trial counsel and and he did not use it at that point but when the motion for mistrial was made the judge mediately denied it and essentially closed the issue and let you know kind of impeachment with this information all it did is say there's no grounds for a mistrial if there is no prejudice i don't agree that that it sound i don't think that that ruling on whether it's a reliable identification should stand and of course we have to go through various hurdles to get there that  but the end result is that it was a very short amount of time that she viewed him that the procedures used were so unreliably and recently suggested that the government counsel said himself that he wouldn't allow his investigators to do them and she knew she was paying attention of course we we admit that and she's she didn't identify him as positively as in other cases she said that he had a high resemblance and in a situation where she was one of two witnesses that had seen has the robbers face to it to be able to get that testimony suppressed by having this information beforehand and this is why we have focused on the prior to is that that would have been the prefer the way to deal with evidence of this sort in this case and we don't believe that the district court made the correct reliability determination under the bigger specters in this case  in addition to the other factors are the fourteen months after the robbery was when government counsel showed her the photograph a stone simply to identify the earring which is this court can see on page forty seven of our appendix is not identifiable from the photograph to begin with so the reason for showing her this photograph is also spot suspect and should have been considered by the district court in making that mistrial arms yes mistrial in the motion for new trial decision regarding that the butane lighter is a dangerous weapon issue this is a little bit of an interesting issues because it is a time to draw fine line between what happens in a bank robbery go to before we spend too much your argument about the gun would move the conviction from twenty one thirteen d to twenty one thirteen but so far as i can tell from looking at the actual sentencing statute that would have no effect whatever misunderstanding the upshot of twenty five fifty nine c want to say i don't believe so your honor all right so then what difference does it matter whether this was a gun the sentence is the same either way well the difference is in his convictions certainly can't just transfer a conviction from one static to another ten twenty one thirteen is a lesser included offense twenty one thirteen days and in any of that it just doesn't matter it doesn't matter substantively whether it really matters substance your client was sentenced to a mandatory life term and the sentencing statute is not twenty or thirteen it's twenty five fifteen zero and see i guess your honor i had not thought about it that way and it may in fact be true however it still is an element of the offense that we're arguing about in this case and which the government really wanted out something that as far as i can as we've argued we did i concede that i should have turned this material over to the defense because of some faulty paradigm i had my own head and  the fact that i thought i turned over everything that was relevant i did not turn this material over it was a mistake having conceded that the fence counsel did bring it out it did come out we had a hearing there was no prejudice because the fans that nothing the judge said barred the defense from arguing in closing arguments that this woman's identification of the defendant was suspect because she had been exposed to this prior photo of the defendant coming out of wal mart incidentally there was nothing in the record indicating that that was the defendant in the war photo that never we never got that far and what my intention had been i wanted i was trying to develop that he had he were these earrings council says that the photo there's an issue as well there's various versions of this photo the ones we're attaching to our briefs are a significantly  lower resolution the photo we had electronic versions of this photo that were much more right much more resolution but in any event i wanted to show the eerie and i wanted to draw out the fact that there was such a close similarity between this witness as composite sketch which showed the left profile of the defendant cut when he left the bank and the left profile that was shown in that wal mart photo and i was and that's why i asked through that after asking about the earring i asked her that additional question does that look like the man you saw leaving the bank what i intended to do later on was connect up with my case agent have him a that i would when i showed her these photo there were a pretrial interview that i was engaged in any kind of photo identification procedure we had talked counsel reference and a promise by me not to do these kinds of procedures and she was right i did tell district court i told the fence counsel and i told my agents we're not going to show any photo raiser lineups to these witnesses  the photo look like the robber but she saw that yes you asked her on the witness stand but if you ask her before trial the same thing the same question that's that's it it look like the man you saw robbing the bank that's an i question i understand that it was a mistake and it just didn't occur to me i was thinking again i had a bad paradigm might i was thinking rigidly that showing them the standard six photo array that would be an identification procedure or the other way of doing it one photo at a time with all the various admonitions i mean to me i was i was pretty trying this witness we always try to show exhibits to our witnesses i had a computer on the table and i'm just hitting the next next next next and i'm going through photos we had a whole series of photos involving a bank robbery that she could authenticate and i got to that photo and it my co counsel didn't it didn't occur to him either didn't occur to the f b i agent that we had done a thing we had to disclose just in the way of me a cult further in a way a miracle i'll indicate that we turned over a lot of brady material to the fence in this case we turned over the material to them that was the foundation of their defense that this individual up named parrish it was the real bank robber and it was a guy from central illinois who was investigated in connection with some robberies and we provided photos of him and and the like we also provided all the other information concerning anybody else who was investigated in connection with this robbery i had the f b i search for anybody who looks similar who was african american who had committed a bank robbery around this time in the area and we turned over everything we had but in any  it's our contention that judge darryl handle this appropriately there was no prejudiced of the defense why the defense chose not to argue or try to undermine this witnesses quasar identification closing argument by referring to the wal mart photo i do not know but they certainly have that opportunity and nothing can judge harold certainly did not preclude if that was understood that that was going to happen  do you agree that this is a three strikes case regardless of whether the conviction lies for armed bank robbery or just bank robbery absolutely and i and i pointed that out in my in my brief i said regardless of whether the robberies are o terms these are qualifying serious violent felony as well that the present offense is not i'm not talking about the past offenses i'm talking about these offenses yes yes it's so the defendant doesn't have an opportunity to take himself out of the three strikes law by  showing that no dangerous weapon was used he has the up he has the opportunity under thirty five fifty nine to present evidence to rebut he did to show that i believe those languages there was no threat of  physical force or for violence are no use of a dangerous weapon right by someone it is relevant whether he's butane lighters qualify as a dangerous weapon that's what i'm trying to get at because the defendant tried to get himself out of the three strikes law i guess that prong of it yes that would be it would be relevant but nonetheless but nonetheless these are still robberies  contest and everything but that was not the basis for the rule twenty nine motion the basis of the rule twenty nine motion was just that this butane this was a butane lighter and was not a dangerous weapon so i find very i mean look at twenty one thirteen day this is very puzzling to me it says whoever it said should set your puts in jeopardy the life of any person by the use of a dangerous weapon or device now how up to this woman's neck and he decides that he's got to open fire because you're about to execute this woman there's going to be bullets flying around that bank and you have to put everybody's limonite bullets flying around he'll shoot the robber which he'll  have to have this trial and christianized stuff right it's my understanding that the premise for this this language qualifying or this this kind of situation qualify under that language is actually shoot no matter what happens right right it's a twenty one thirteen a case for robbery by intimidation correct you know if the thing order in the pocket or in this case in the bag is as far most as a finger why would there be any difference you've still got the intimidation from that the appearance of the outside and the threat but why is it a dangerous weapon if it's not more harmful than the thin know i believe the only way to reconcile your point with the law is that it's a matter of degree because he to any reasonable person coming into that bank and you know you don't want to say a reasonable person because i began with the finger in the pocket it's designed to make a reasonable person think that there is a gun in the pocket but falsely there is no gun in the market so instead of the finger we now have the cigarette lighter designed to make a reasonable person believe there's a gun in the park or the bag but there isn't what i'm asking why you say that i'm sure quite correctly that the finger is on the intimidation rather than on the guns why isn't the cigarette lighter on the intimidation rather than the dangerous weapons because again i don't think a reasonable person would open fire or take vital in login violence a reasonable person it is part of that the reasonable person cannot tell whether the thing in the pocket where the bag is a finger or a cigarette lighter right right so it can't it just can't affect how the teller behaves it cannot see what is in the pot right you have to deal with the hypothetical as a given but my point is that a clique a person using deadly force has to have some degree of certainty before they use  ron i think we're going to three strikes and the interplay with twenty one thirteen it's something that i certainly mr my break didn't think about until the court answered the court would likely be more than happy to file supplemental briefs on the issue grazing on that limited issue of say a few things about the rest of that argument certainly i think that the argument that's made in our brief as essential in the hypotheticals that the court is asking about is that a butane lighter just does not instill fear in more than a match or two sticks as we are going to at least this butane lighter wouldn't if you look on amazon you'll find butane lighters plated revolver and only the robber knows that what's under the barrel is a screwdriver rather than a bullet he said twenty one thirteen d i think that is closer to a toy gun because it's made to look like a gun and concealed nobody yet you know i want to ask you the reverse of the question i asked to to the prosecutor suppose what's in the pocket is actually a fully operable and gun but the tower never  instilling a fear so you don't think that violates of course there's an instilling fear that's what the idea of it you know you put the thing in the pocket you make like it's a gun you say hand me the money or all shoot  but nobody ever sees what's in the park and it turns out it's a real good i think it's the same level as the air as a note because there's no display of a weapon of any kind i don't think twenty one thirteen  right i think that where that gets into the united states versus ray case from the d c circuit where i believe it was a note without now he kept it and concealed that's where the display cop comes in or reading a mclaughlin