these convictions amount to a miscarriage of justice and the district court should have granted a new trial under rule thirty three dollars a despite the verdict in this case the weight of the evidence shows that the witnesses misidentified jimmy dowdy the defendant as the shooter there were three eyewitnesses to the shooting that night they were all teenagers they had all admittedly been drinking and or using drugs specifically marijuana and costs this happened in the very early morning hours it was dark outside the sun wasn't up yet and any possible identification of the shooter happened at a distance of two or three things counsel i saw the court gave our standard instruction the battle obstruction on eyewitness right yes yes no i'm thing is what about the way you could interpret it to say that's true at the time you're talking about they were further away but shortly they'd been side by side i'm sorry i didn't quite i'm sorry you do it based on  respond but that it isn't for the jury either way that's right your honor there are two possible identifications the st one is the seventy five yards between the shell casing which is where the witnesses approximately placed the shooter and where the victim was shot in the other the other distance isn't quite as clear i would disagree with it being side by side i know there is a lot of references to maps and stuff in the trial and my understanding is it was just a blank map that ended up going to the jury and being introduced in evidence so it is a bit difficult to try to  where exactly people were and my understanding my reading of the record is that we don't know exactly where the witnesses were in relationship to each other and therefore what the distance was when  if this were a sufficiency standard we would take all the evidence in the light most favorable to the government and assume the closest possible distance which again i don't believe that i have a number from that i could parse from the record but this is a motion for a new trial based on the way to the evidence context where the district you know family i think might have kind of a broad sense of this community that people can be distantly related and not know each other well and that's true for all of these witnesses and mr dowdy n r o specifically the young woman couldn't identify mr dowdy at trial she was given a chance to point him out in the courtroom a couple times and couldn't do it and i know there were some witnesses who said he looks way different now her pocket his one of the tribal officers who also was familiar with mr dowdy said no he looks exactly the same so he's my family member i know him so well i could tell him from his walk she couldn't identify him in the courtroom she had to identify him based on a facebook picture that is exhibit sixty nine dollars a and if the court looks at that it actually has jamie dowdy the name printed on there three times it's twice at the top kind of in the information about where this came from from the internet and then right below the photo there's a it says jimi dowdy right there the name of the person from the facebook page was that was that exhibit contested it was specific point that i'm talking about where his name appears on there i don't think that that specific part was contested the government did attempt to introduce an array of facebook photos to see which one she would pick the district court limited it down to this one that was then energy says exhibit sixty nine  was there is there a brother there there is your honor there is a brother his name is joe joe dowdy and this witness r o who we're talking about did admit at least on kos about a week and a half after the shooting when she was talking to the f b i she said you know maybe it could have been joe joe and so you know i have to admit there is a discussion she testified that before at some point when they st saw who they say was the shooter she and her friend who died talked about h brother at the beginning and jamie appears later on so the jury was able to see jo jo into me and this court could look at him as well and although these witnesses by the time of trial have converged on the shooter was jimmy dowdy and i can g really good description of jimmy dowdy at various points they also said in the shooter look like a little kid the young one we've been talking about said on the scene i thought it was a younger kid donovan young man who's the oldest of the group in one thousand year old young man he said the shooter look like a little kid when he was walking he said that in an interview a couple months later with the f b i and like i said we have trial we definitely have a consistent description of jimmy dowdy but on the scene the witnesses are initially giving different descriptions somewhat from each other and also from what they say at trial i'm two of them on the scene so the shooter was wearing a white undershirt or a white beat or a sleeveless undershirt and the other said no he was wearing a sweater with a hood another one the young women are we've been talking some objective evidence corroborating the eyewitnesses you're attacking and it will thirty three but i think i want to make a distinction between that  crime rate at least the description that they're giving at trial but our position is that that was a misidentification in and they are describing jimmy dowdy at trial but the problem is that the weight of the evidence is that even though they convinced themselves early on that jimmy dowdy was the shooter everything converged around that theory very early on and therefore this identification was a misidentification and it was against the weight of the evidence and i want to move on to the issue of the witness to this meeting one is plainer review that is what was said at the meeting that didn't come out until after trial in the defense investigators affidavit but there was an objection to allowing this meeting in the st place and that was an abuse of discretion at the time that's playing there i didn't sure and to ensure that they didn't talk about the case i disagree that this court reviews for plane air for the decision to allow the meeting in the st place how can it be air where's the abuse of discretion when you put that kind of constraints  and direct the presence of monitor if they had if they had abided by the by the district court's limitations on the meeting this wouldn't be an issue right it would and i'll tell you why it was an abuse of discretion in the moment because if you really look at what the government said in requesting this meeting it's clear that it wasn't just about emotional support for a struggling young man but it went directly to issues witness bias and witness credibility and looking at the votes of the meaning actually stop the minute that they looked like it was getting it at that point it was your search no prejudice right there would be prejudiced i think that if you are shifting to the moment of the meeting itself and what was said during the meeting the statement there the f agents are trying to blame me that a r c a the young man said and that's why they stop it at that point and that once that said that goes directly to witness credibility that these other teenagers they now know if we waver at all and whether mean a lot of different things i think the st statement that we do know is more clear and more concerning because it tells the other witnesses if we waver at all it's not just some person showings that came out before that meeting was stopped right that's right so didn't last very long i don't know how long it lasted the last it's very well right i don't believe so but i don't i don't believe that i have a time limit earth time set out in the record how could it be error putting it seems like the decision to allow this meeting initially is where your abuse of discretion argument lies right so at that point as i understood the district court it was saying well we'll let witnesses sit out in the hall and and talk amongst each other just tell them not to talk about the case i and my impression was he was in well this is really no different and they're just not able to do it because of their situation so can we how does that at that moment how is that an abuse of discretion present the friends you're you're going to fast what do you what are you referring to i'm referring to when the thing in the record but yes something in the record at trial transcript page thirty nine when the government is making the request they say paraphrase in the beginning that when a r c a young man is meeting with investigators and the f b i he asked to have his friends present they had to be with him beforehand to give him some kind of recourse so we know at the time the request happens that this young man can't make a the government but you yours you're saying with the help of i'm cycling the absolute worst spin on everything that was said by everybody i don't believe i am in this instance you know this is what the government said about previous meetings that this young man every time they try to talk to was that it was that a false statement it was not and i my time is up but can i briefly elaborate i mean these people they would they were sequestered beyond the normal sequester ation and so there was permission from the court needed to put them in the normal situation of what sequestered witnesses right yes or no yes and i would point to the st pretrial conference on page forty five dollars forty six cents there is a specific concern brought up about these three teenage eyewitnesses and the lack of boundaries and the concern that they've been talking to each other about the case something the defense rai i don't see anything on reasonable and well in the court's decision to to help comfort or improve the attitude and emotional stability of soon to be trial witnesses in a murder case ok i think you later there's a police lineup and they pick someone out of the line of say i think that's the guy that's not this case at all this is a case where three witnesses the three survivors of the encounter with jeremy dowdy knew him and ironically really the murder victim appears to the only one who did it and we know this because of the conversation they had when they st saw him between the two girls who were there and the woman who was his cousin or or relative of some sort  where they at that time just the records say the record does not say that exact but we have estimations we know it was much closer than the seventy five yards that the shell casing was found between the casing in the blood spot but the way this was is there's a highway eighteen runs right through the town of pine ridge and there's the building and are kept office and there's a parking lot here so there's a street that they're coming up and they're cutting across the corner of the gravel parking lot at the same time jimmy dowdy is on the other side of the street and so there's a point where they're intersecting like this i would not say they were side by side but they were much closer then as he continued rocking and rocking and then he turns around at st with the gun to point it they see him again there they turns around again and fires the shot at any witnesses sick them estimate estimate the distance no he was found it is home found at his home which is about four or five blocks away and then the corroborating evidence of what the witnesses saw him wearing the red shoes the backpack rack at any time at the time that's right the gun was never located there's also evidence of record that he lied to the police about having black jean shorts to the f b i agent actually i said no i don't have those one of them they were found in his room  so we have that's kind of the universe of evidence though that we're dealing with in this case it was it was three am and there was no one was keeping track of where jimmy dowdy was he didn't have an alibi other than his own testimony how quickly we did or not testimony  didn't get a search warrant until early afternoon i believe so several hours of it passed so no gun residue test as evidence nothing like that no thought no no gun residue testing was  done what we have here were but three witnesses immediately say this is jimmy dowdy before anything even happens there's a discussion that it struck me dowdy and the other two the men that are the boys who were there town of pine ridge did our did r o say with certainty because that was kind of an unusual circumstance she couldn't identify him in the courtroom right did she then follow up and say but i'm certain she said i am certain it was jimmy dowdy and they said well where's jimmy dowdy here and she couldn't pick him out in the courtroom at the time i think she was sixteen years old he was looked much different there was testimony in the record from several of the witnesses the officers when he looked much different at trial than he looked on that night trial but in looking at his that his facebook photo and other witnesses and looking at his booking photo said yeah that's certainly him and there's no doubt whether it was jimmy dowdy it was just i was there that night it was just the one witness couldn't immediately the proper standard to a new trial motion and he says on page eleven he recites the proper standard the same one recited and the defendant's brief but he says on page eleven of his order in making its determination on the new trial motion the court weighed the evidence and doubt i mean they knew him they know this has on the jury instruction issue the planner question it's true it was the it was not requested i mean sometimes strategic decisions are made in these cases by defense  and so i would suggest that if she doesn't have teeth and the jury was instructed on witness credibility including whether or not a witness is affected by drugs or alcohol their opportunity to observe all the conditions that was given in the general credibility instruction so i would suggest that that's not playing air in this case on the issue regarding the meeting it's very true what judge by can said i mean usually witnesses family structure at all and he's in custody and he wanted just to see his two friends really his only support structure in the world before trial and we want to do accommodate that and judge by can did there was an objection to that by the defense counsel but judge by can and narrowed what we wanted he said this will be a ten minute meeting you know being monitored by defense counsels expert by the marshals we had our witness victim when a specialist there everyone was made clear you trying to blame me you know what i take from that they are saying was the guy who threw the rocks at jimmy dowdy to rocks at him which likely is what provoked jimmy doubted to turn around and fire the shot so i'm just speculating on that but that's  simple explanation as to what he meant when he said that and you could not show prejudice from that i mean you don't overturn an entire trial how would that how did that affect the testimony everyone is already were locked in on the night of the evening that jimmy dowdy shot this