this court for a new rule a rule regarding the significance of the relationship between a defendant and the declares of a statement against penal interest in this court before has indicated that such a relationship warrants scrutiny but the government is now asking this court to rule to a firm and district court who relied on nothing else moreover this case of be a poor vehicle for making such a determination because while there was potentially depending on the ambiguities of the court ruling by an aspect of her ruling that depended on the relationship between the declarant and the defendant the result of corroborating evidence of the statement on the other side to begin with there was a relationship between the declarant and the witness which other courts have recognized to be a corroborating circumstance this was not a statement that if the current made in an express attempt to get his father off of this charge this was a statement made repeatedly over the course of sixty three conversations he had during a four month period with his on while the player incarcerated in various wyoming institutions so there's that evidence to corroborate his statement and there was connection with both burglaries the first of which he had had in the first of which the gun had been stolen so this evidence tended also to corroborate mr geiger statements that he was the one responsible for the gun there was also the fact that there's nothing in this record to suggest that mr manning was ever charged in either burglary indeed there's evidence that rather tends to suggest he was not charged in either burglary finally there was nothing from the second nothing from mr sharon's house was ever found it's on the backpack and how very quickly nothing found in the strand robbery burglary so all of these things together tend to corroborate the statement  so despite all of this the district court without reviewing any of that evidence ruled that simply apparently based on the relationship was what was the proffer of the statement like a ghazni the proffer of the statement was that he has admitted on multiple occasions that the firearm was not his father's his father didn't know about it and that is soon a secret he asserted on a number of occasions that if you was ever arrested his his father that is he'd come forward that was a proffer about the as mr manning he's a felon too well this is a trial for a felon in possession of a firearm so it doesn't make any sense to make that statement that he's in the same spot if the statements weren't going to be i ha the extent it is inadequate it makes it harder for the judge to make a commonsense determination that these aren't rigid rules this is a commonsense issue of whether there's there faction i mean this is know i think in light of the fact that there were all there were corroborating circumstances the fact of beyond the fact that there was evidence before the court and before the jury that steadily was looking for guy a ghost in connection with th this crime that those are all indicia of the reliability of the statement the district court didn't review any of that which is another problem with the district court's ruling all the district court said was based on these relationships this is insufficiently corroborated the district court also didn't find there was a problem with the proffered all the district court said i can read the ruling based upon the close relationship of this witness as well as the relationship of guy  doesn't reverse that all it's just these two relationships and at least one and possibly both of them one she cites because the rulings somewhat ambiguous are expressed libral all the relationship with this witness should not ever have been a consideration and in in excluding the statement because if it's the relationship of the witness to the defendant and then it simply black letter law that witness credibility is a matter for the jury if it's religion ship of the witness to the declarant we have the letter that the law but it's a matter for the jury and then we also have the fact that many courts of recognize that a close relationship actually corroborate a relationship and the current the reliability of the statement and then in addition we have the fact that the government relied solely on legato and was not it doesn't say this is a not just a relationship between a defendant the clarence is enough in was a lot of there were quite a few other circumstances this which we don't have here in los gatos there was a long time between the state against penal interest almost eight months here the statement started in you repeated the couple's i'm sixty three cards yes but the problem that is in ms dietz is testimony to the court it's a page five sixteen of the record and there was no objection from the government she said between mentioned i think this was a low that it was you relying on isn't that in that case the declarant actually agreed to speak with police and the court found that significant didn't it in determining this wasn't necessarily a statement against his significant distinction i think it's a significant distinctions and those are both the time period and the the radical in consistencies internal inconsistency with the statement in was otto that th was thought of and here we have quite the opposite we have a close correspondence between what mr guy a ghost understood to be the problem what the problem actually was there was quite a few things in that  backpack that could have gotten mr manning into trouble for instance the drugs and a closure analogue to be to le god it would have been i think if mr manning has said to the police the drugs are mine i didn't know about the gun and then mr geiger said said the drugs are long no mr guy a ghost all that stuff in the backpack is very consistent about the fact that the gun was his he doesn't mention anything else in this pro so that's actually a consistency that differentiates this case from lazaro and also and was out of there was even a question about whether the declarant had access to the car or all the stuff was found that he was claiming to have put there here again we have detected steadily looking for mr guy egan's in connection to the earlier robbery that netted a gun for burglary that netted a gun so again there's there's evidence in the record to support that mr guy goes had access to this gun are no further questions on that point i'll move on briefly to the question of harmless clinton and the quality and the significance of the evidence in this case i think it would be an incorrect result for this court on a cold record to affirm on the basis of harmlessness there w admitting that a single time this is someone talking to a trusted relative over and over and over again and making these these admissions repeatedly the quality of the evidence is also a significant factor again he was speaking to a trusted onto i assume sixty three conversations in four months is indicated indicative of a fair degree of closeness and these conversations were pretty indictment and this was not him trying to get his dad out of trouble once it was central core every version of the story mr manning told mr guy goes was there and mr many didn't know about the count and then the significance of this witness at this evidence that was excluded was considerable this went to the heart of mr many's defense especially when coupled about the evidence that he thought he would get life in prison that was also excluded the hotly contested central issue in this case was mr manning's knowledge of whether he the gun was in the backpack or not these two pieces of evidence that were excluded went directly to his state of mind and to his knowledge and were the only evidence you had available to contrast the government's story you know well it just follows naturally the gun was in the backpack must've known it was there is there new further questions at this time is like to reserve the remainder of my time for rebuttal thank you and listen to their arguments i think it's important that we really look at the facts of this case and particularly some of the facts they left out of their brief as well as oral argument here today and those facts around the backpack and the firearm and the evidence that the heard regarding those items prior to the ruling saturn question here today when we look at the backpack i think it's important to remember the evidence was that the defend the mr manning was found in possession of the back so we start with that right there he had that backpack and he had it for a considerable amount of time during the time he had possession of the backpack and made it clear he did not want to be caught with a backpack we have testimony that originally he was trying to kind of hide it in the neighbors bed of their truck and when the neighbors on doing that had to get out ran with it tried to hide it did a lot to distance himself from the backpack then they also make a point that when the police officers found the hidden backpack they opened it up the gun was laying on top of that clearly corroborates mr manning statement that he had given the backpack away and somebody had been put that gun on top of everything else in the back which sounds it i'll admit it but we have to look at the backpack the evidence about the backpack and its contents are that it and other items inside of it other than the firearm were stolen from a home a few days prior to this home invasion mr marshall testified that he had kept the firearm in a bag of bullets and the backpack were all kept in his closet when he got home from vacation all of those items were missing as  some other items from their home so we go to the day of this home invasion mr manning admits on multiple occasions he gave that backpack to mr guy a go with the tools that were inside of it in the reason why changed over time to fix a car fix a motorcycle or or whatever he admits he gave that backpack and everything but the gun in it to mr grey go other items found in the stolen backpack and there were other items in there other than what mr manning had given were awful stolen from that so clearly that backpack had been intact from the first home invasion to this one where we find m burglary in the same back in a random package of credit cards from now it doesn't make any sense so it's not this wonderfully consistent story what the judge heard was a set of facts that makes mr manning versions of multiple versions of the evidence they don't make sense that's what the judge had been hearing so to say the evidence they want to admitted would cooperate this wonderful consistent statement of mr manning just doesn't jive and it doesn't jive with what the court heard that morning i think the other important factors to look at they want to gloss over the inconsistency is in the defendant's statements and say oh my were minor and they don't matter but he was always insistent that he didn't have a gun i mean that's not a surprise for a long time he was very consistent that he never wore a hat well we found a hat we found d n a on the hat so he finally said ok i had a hat but even that version change will find i did have a hat  what we're supposed to believe when he said that it wasn't my again oh well you must be telling the truth about the thing that was the most damage to him when he would lie about everything else in that back so it's not from wonderfully consistent statement this evidence would have shined the light on to prove it to be true it already didn't make any sense and so for the court to not consider or allow in that evidence if it was  which i'm not conceding would have been harmless given all the other surrounding factors when you look at this idea of the car breaking circumstances and the court indicated it the proponents burden to show that those were clearly cooperated and the appellate counsel did a good job the smarting of laying out for the court several circumstances that they  were corroborating circumstances however those were not presented to the court during our argument as corroborating circumstances they just weren't put forward the witness did testify there were sixty three conversations between her and her nephew how many of those contained a conversation about the firearm we had no idea the multiple is multiple more than one is it to the twenty forty sixty we have no idea and we have no idea there's nothing to indicate there was anything in those statements that corroborated his knowledge of the firearm all we know is you said that wasn't my dad's firearm he didn't know about it there could be a lot of why operating circumstances in no case have a court ever found that a declaration assertion of their fifth amendment privilege is a cooperating circumstance in another self in the replete with this exact circumstance where there's a declaration and there unavailable primarily by by claiming that privilege that's the vast majority of these cases and yet in case after case parts of found other choir rating circumstances the defense like to make out that it's impossible you would never have any other corroborating circumstances but there's case after case in which the statement itself provides those proper etting circumstances for example if we had a proper saying guy a go said the firearm was silver and black and that is what the firearm looked like back to cooperate it yes and we left the backpack in the backyard of the strand home that would tend to cooperate there's a lot of things that could have been contained within the statement itself that would cooperate the actual knowledge of that done in the backpack but when you look at it and there was a case relied on in th cases that concerned controlled substances and in that case somebody else wanted to come in and say there was a declaration to said those are my drugs and they wanted that admitted and in that case they said look just because somebody says they own a controlled substance doesn't mean somebody else can't be in possession of it and i think that's the same circumstance that we have here when mr manning is giving i think his third second and third statements to the a motorcycle so he started calling saying you need to bring that back and the time changes because the first time frame didn't wasn't realistic and then they sent so that later changes you need to bring that back oh we've already ditched that a house on the street well just that part of the story doesn't make any sense why they did a backpack that supposedly they would know has a gun in it in the backyard for no reason there were no other reports made that morning  suspicious activity in the neighborhood there's no indication anybody was after anybody in the neighborhood at that time so that doesn't mean anything and he can't explain why he's so worried about the syringe being associated with the backpack and his claim that he didn't know anything bad was happening with the bat none of that makes any sense either what makes sense is that either he knew what was in the backpack along the firearm and maybe he didn't have the backpack all morning maybe a son had it maybe ascended home say well left that backpack in the backyard but the truth of the matter is it was only really important to get that back at them they don't meet the clearly trustworthy standards as i said the sixty three conversations we have no idea how many of those were about a firearm there was nothing in those conversations themselves to indicate that the substance of those was trustworthy there's no other information that indicated he knew about that home burglary the other home burglary or the other contents of the backpack variety of a fact she pointed out that officer detective that lee was looking for a guy it was some possible connection to that other burglary in the district quarter and considering the sibling relationship between manning and his context it's clear that the government was arguing about the relationship between the declaration the defendant and he's ng and it's possible that the court did if it did consider that relationship wouldn't really go to credibility to details credibility between the witness and the dr yes i think it would have been an error jargons that it wasn't plainer i i think my argument is you know that's not what the court relied upon i mean in her rulings you specifically talked about proper eating circumstances and she does not mention the witnesses credibility  guess it's i guess it is unlikely or rowing i will admit that but i don't think that that wasn't what the arguments to the court were about or the case law that was presented so i don't corroborating circumstances so i don't believe she is weighing in on the credibility of the witness regarding her relationship to the defendant which we haven't really discussed that relationship during that and then it's possible judges sometimes make a ruling on their own their own ideas rather than what's presented to them but i think she had listened carefully to the arguments that were presented and was making her ruling based on those arguments and while it was  kind of a brief touching upon them at the trial court the defendant did argument argue that the relationship between the declaration and the witness titled get confusing they did argue that lab rating factor and so i think when the ruling talks about for operating evidence they're talking about those arguments that the parties put forth regarding corroborating evidence and really the defense offered the court very little point what he's saying you have it is cooperating that makes the statement clearly trustworthy and you know one point the defense said well we think the jury should decide that clearly not the appropriate function the court does have a the judge's ruling is quite clear it relies on one factor that's wrong and one that's inadequate and the government is asking the court to affirm on the basis of this ruling and that's what this ruling consists of i also want to address the point that the government made about the wildly inconsistent nature of defendants stories it is true particularly the first story in just an enormous amount of methamphetamine which i think the court can take judicial notice may have affected the coherence of his statement but throughout all of them including that one he said he didn't know the gun was there and he also said he didn't know the drugs were there it's not as though his statements were purely self serving he admitted over and over and over again i was high as  i knew there were drugs in the bag and that to be a problem for me and that a person with mr manning's criminal history might think the problem that there are drugs out there with his d n a on it is not out of the question what this court is being asked to decide is whether this as an inch should have gone to the jury or whether or whether the district court based on reasoning that combined the inadequate with the impermissible could take it from the jury's consideration at that point we think the answer is no juries exist to resolve issues of credibility and they should have been allowed to resolve this matter see my time hired her