good morning may i please the court my name's turns kellog i represent brian jones i wish to reserve for minutes if i might this case is essentially about injuries it's not a case of waiver and it's not a case of failure to object at the time of trial as much as the government would like to rely upon that not only is it about changes but to billy assess the present the prejudiced t jones from the government's vouching for what it considered and argue to the jury was the nice medina's truth and that phrase was used repeatedly by the government in closing argument see the problem with that the problem is the way in which the comment was made your honor the comment was made by placing the governance the office of the united states attorney and as a personal opinion t is i understood it counsel was arguing to the jury that one version of facts given by the witness was cracked and the other was incorrect it was a causal truth or believable makes little difference it's not that the government is putting the prosecutor's putting his own credibility on the line as i see it well i would urge you to reconsider that position i'm quoting from the government's answer in brief page seventy five client gave both sides i mean your client gave both statements that's what i call it is trying to present to you this is quite a different thing and coming in and saying everything we've presented is true and everything they've presented is fa well and it's also true that you did not your side didn't even object to the first statement isn't that true i believe that there were two objections before the third and final objection made after the last statement but nothing on the first statement first statement came in there was no objection regarding the twenty eight december twenty fifth two thousand and fourteen incident in closing argument i believe there was that we're asking the court to look at the dentist testimony but rather that of mr williams where the prosecution said he's not i don't think he's the kind of guy who can figure out what he's going to do next week let alone plan something am not making my point and my point is the will in which this was presented by the government starting not just with closing arguments and the objection will clearly objectionable well presentations of the government counsel's belief as to which version of events was true but starting off with calling miss medina as a witness the first thing that the government does is bring out that her lawyers present and she's got a grant of immunity that anything that she says doesn't matter and it was because the government anticipated moving to rely upon her prior grand jury testimony thought so what so what's the problem what's the legal principle at issue here i think that the legal principle issue here is that is the fairness of trial and the government put in its position it inferring that they have all of that then they're able to show during the course of the trial by the passion with which they think the position that the truth of of the two differing versions is the one that was presented to the grand jury exclusive of anything else but isn't isn't that isn't that a fair isn't that a fair comparison for the government to present and allow the jury to decide which which of these which of these two inconsistent statements is true if either of them is true up to a point and that was the point that was made the distinction between  when that is a permissible inference so there's a difference between saying something is the truth and arguing that a witness was telling the truth and it may be a subtle distinction but it is incredibly important because when a government prosecutor is talking to twelve people and saying this is the way it is this is the truth this is denise's truth we pitted lee after setting it up yeah i'm looking at the objections on page looks like excerpt records forty one and f if you're depending on us to figure out what the voice inflection is well reading this on a cold record and for that we're going to have to defer to the district judge so if you want to argue that there was voice inflection here that is somehow relevant to deciding whether the government was vouching or not we are this court is now at the mercy of the district judge on that one the district judge has it all over us on that one i can see here we're not president and all we can do is just take your version of that  you had an opportunity to object which you did but and the district judge overruled it but it wasn't just closing argument it was throughout the totality of the case it was it was the fact that she was granted immunity it was the fact that instead of testifying granting but it was it was that passion it was that imprimatur of the government's position that it was our concern that the night a fair trial and it's not just the phrase used in the in the middle of closing argument it was replete throughout the record and also my comment well my question really went to your argument that somehow morning tea had something to do with it because she came in and gave an example tory version of the facts that was the that was that was the i guess that what the prosecutor would say was was not the truth and my point was the community enabled that argument to go further by saying it might as well have been on the street as opposed to in court under oath ok you have other issues you might want to take up well yes because you have all you want to say about that well i mean all i'm trying to do is get you to other issues if asking this court to look at this from a standpoint of structural error that's what preston says is that when you have a multitude of errors this compound the rulings ev that's the difference between focusing on with a microscope on limited statements as opposed to the cumulative effect of errors to such a degree to introduce evidence of identification under the medical testimony exception for purposes of identity but limited that said that so far presence of her former husband anthony williams who's there the entire time when he is the one who not only was not able to be cross examined as to prior tribal convictions for domestic violence and orders of protection obtained by miss medina but none of the two being asked by the court  by defense counsel whether or not he'd ever been physical i mean and so with this medium when the answer was no can't remember that that was the end of it so but as i understand it it's just tak been so i understand it evan is a forensic nurse her purpose is to testify that she is the nurse who primarily treats people who come to the emergency room and say they're injured by another person you have slightly right you hand as i understand it well i looked and i could find no evidence in the record that makes appen a part of law enforcement so i said to myself and seven testifies that knowing the of the attacker and the contours of the incident are important for treating medina if she's a forensic evidence forensic nurse and she's a nurse who primarily treats those who come to the emergency room and say they're injured invasion situation where jones of broken into her home on christmas and held her and her husband at gunpoint if a patient seeking treatment for anxiety from a specific incident seems to mean one would not want to know testifying in court didn't happen testified that she was a nurse who primarily treats people who come into the emergency room and say they're injured by another person that she testified to that i don't think she testifies about treatment she says as she sees time at this point i but i will allow you some time thank morning your honour's may please the court michael morgan for the united states i'd like to just before getting into the merits just clear up what i think is some confusion about cumulative error and structural air there is no structural error in this case i mean the only claim that was possibly structural is a confrontation clause claim which is aside from being on preserve this isn't a structural error i understand the council is trying to argue that there were a bunch of mistakes that together were prejudicial it's a kind of cumulative error that's not a structural or and there's also a problem because counsel didn't actually raise a claim of cumulative error in their opening brief they argued that the evidentiary questions address the valjean claim first things to be the defense's primary point the short answer is that in marshalling the evidence and arguing that the victims out of court statements were quote denise's truth all the prosecutor was doing was asking the jury to believe that those statements as opposed to her recantations on the stand were believable that is proper you are allowed to argue that a witness was telling the truth you're not allowed to say i know that what she says is the truth in the objective world because that usurps the jury's role but that's not what happened here all the prosecutor did was argue that this witness name correctly but her as she testified she is called in any time a witness present or a victim presents to the emergency room where it looks like she's been the victim has been assaulted by another and she takes the medical history which is what she does her treatment recommendations but that the treating physicians she can recommendations the record completely bears that out it likewise bears out that lata similarly needed this information as formulating heard her treatment recommendations so the prerequisites for admission were were plainly met on foundational basis and in fact that was never that was never the complaint below the complaint below was never that there was insufficient foundation i e that these were really treatment the complaint below is that they just shouldn't come in there too prejudicial and they shouldn't and statements of identity shouldn't count that was the objection ejection was never a foundational one with respect to the limitations of the cross examination for  ramos the counsel's alluded to this was a discretionary call for the district court the defense offered a specific reason why it wanted to bring in mr ramos his past conviction which wasn't just to impeach him generally it was to aid this defense that somehow mr ramos was lying about the fact that he didn't touch the gun a month and a half after the december assault takes place now leaving aside that that has like zero relevance to the crime it was a complete side issue whether or not he touched that gun or this other person touched that gun was completely irrelevant and since that was the reason for that the defense wanted to bring in that conviction the district court acted well his discretion in excluding under four three  similarly with respect to mr williams is past history of domestic violence the court actually admitted the underlying facts it allowed defense counsel to explore the underlying facts which is what the defense asked for the defense never sought to admit evidence his convictions so mr williams mr mr williams did mr williams admit to the prior domestic violence he admitted to one and then could not recall the other and on that latter point the district court did not allow the defense to follow up with did you admit to this which we concede in our brief he should the court should have if williams had denied the domestic violence venue then defense would have been permitted to bring them the the prior acts the prior convictions i submit the answer the question is yes that the and that's why i said i don't see how the government could could refuse that if williams said no i've never touched her and he had a conviction for domestic violence i agree with that and that's why i believe  with the first instant he admitted so they didn't really become a problem the second incident he said he couldn't recall and that's why i think we did concede in our brief that the court should have allowed him to further explore that issue with did you admit to this previously but on this record that's just completely harmless for a couple of reasons i mean not just because of the overwhelming evidence of guilt but also because of the fact that there was plenty of evidence in the record already of williams's domestic violence history most of it coming from the diner admission one incident was as i recall he did so to get out of jail he admitted a charge in order to get out of jail so the fact that what actually transpired in history between he and  miss williams was not able to be brought out by the defense as far as the government's reliance upon pres sylvan saying that we did not raise any issues no open brought servant is limited to a total failure in opening brief to raise an issue at all which then such to be argued so we submitted is not appropriate here or relevant here very standard and moreover it could be seen and is more of a structural or the standard rather then the typical abuse of discretion review very very precise term in criminal law that requires just require showing a prejudice requires us to reverse so i don't think that's the sense in which you're using structural errors like cumulative errors probably a better term i want to use both