first case this morning and mr anthony while knowing the scope of frame mr davis because if they didn't they would have found themselves on trial they were both convicted felons and could not possess a gun without committing a crime in fact mr emery had only been released from prison less than a month before the couple to attend happened that day allowing this testimony to be presented through officer klein took extremely unreliable testimony and presented it to the jury through sunni objective and reliable third party and that evidence came then and for their service defense mr davis showed with their testimony had other issues such as inconsistency where the inability to remember details of their made up story questions like this were going to be commonplace should apply and it's an interesting argument it's not explicitly in the rule we can have an interesting debate about it but here we're also don't under a clearer standard right that's correct that's a big problem when could could create a belief for the jury beyond a reasonable doubt that mr davis propaganda possessed the gun that day under the circumstances under these circumstances and where the witnesses have such a clear motivation to lie the id the requirement for that the statements being made prior to the motivation should have been recognized but it hasn't even been recognized explicitly broadly in the courts  still debatable and i know that's a very tough burden to put on a district judge to say you've got to raise this objection stop with your own interrupting objection when defense counsel has done it began with two fingers and carry it very carefully to a place where the police would find it and the reason that she did that it was because at that time she was already thinking about what would happen if her fingerprints were on that gun she was clearly thinking about what would happen if there was evidence that she had in fact possessed that gun this occurred before her since this occurred before her statements officer quite so it was critical to mr davis to show that that the misremembered who brought the gun or that they just couldn't remember where the gun came from he attacked them because it was their gun and he and that they had to make up a story to cover up that fact and attack a witness because they're fabricating testimony is regularly going to be accomplished through testimony that the witness has slipped up in a story by failing to remain consistent or threaten key details because they're making a story out allowing the government to point to isolated question one of the statements the government the government points to is question so you saw that you didn't see daddy afternoon betty and fighting cancer no what i saw is daddy anthony trying to get that gun from king it immediately after that statement randomly testified that at that point he had the gun she had gotten the gun from mr davis inside the house and then ran out of the house with the gun cd testified that at that point mr davis had the gun and see  maybe some of it is she's just not that clear it's hard for me to see a plane or other counsel well your honor as you understand there is very little that you have some testimony that doesn't really help the government that much but you also had a six year old reversible error this this turns into a reversible error where you have the you had after the interest of the string you now have a witness who has a six year old girl testifying against her own father and his to try to inflame the jury and have a jury decide on it under just it's just that the government witness turns out to be not as helpful as you sometimes hope and as a prosecutor i mean everybody's who you're with that phenomena and i think  this was a case because of the make the because of the the use of the child the horrendous nature of the mess that she was going to be talking about the fact that the jury was aware she did not feel comfortable testifying without a companion all of this makes for a witness  sympathy for the witness and and prejudice towards mr davis by the key factors that the jury would take away from this testimony means that the errors to prevail when reversal of the defendant must show the errors were so obvious and prejudicial that the district court should have intervened without prompting and all of these evidentiary fail on that standard and on at least but that argument is not one it should be raised in the appellate court the appellate court either the question is whether the claim and you have a rule that was amended four years ago that appears to have their best been interpreted by two district court cases one of which really just sets forth the rule and the other of which says i shouldn't have to get into the issue because there is no argument that it's fair is under de one b two what you actually have is a religious never been interpreted before and i think it would be a rare rule that's never been interpreted before where you could  twenty thirty notes throughout became a twenty fourteenth amendment same a purpose is to take those words they were previously admitted soley for rehabilitation and drop them into the substance of basket on the ground that juries really can't discern the difference between substan rehabilitation anyway and so rather than exclude them we should just let the men and not jersey we think they might be doing any right now maybe that's wrong maybe that's not what the intent of the was but we're into now and so we can't get to that at this point and i would also or not this claim that somehow jackie graf brought jim davis over to her apartment filled with children in the middle of a neighborhood on a weekday to try to set him up with the ground made any sense and it didn't make any sense and i don't think you could have listened to the nine one show that there's a plane there or that there is any effect on a substantial rights as to see this testimony again and the defendant you know had a hearing said ok for her to testify and that the district court on its own should come in and said no this witness can't testify under those circumstances again this is nothing amounting to planning our i believe cd did provide valuable testimony the jury could decide for itself whether she shot a gun whether she was confused by the question whether she didn't see the gun marginal for a six year old been hearsay means and we felt we needed to bring an end i will say initially there were sort of a couple of competing claims i think it's a little i don't think it's quite correct that there was sort of a run through of defense right it was well maybe there was a gun there maybe jackie ga gaff set him up in rural member there and then produced a gun and despite happened that then her daughter and her boyfriend stumbled upon and so i think her testimony at minimum was helpful i'm mad and if the jury felt hell no she's just confused this on this question and the other filler are all real she really did see the band and i think that provides compelling and valuable testimony so at a minimum the standard here or there is was it clearly an error for them to even allow her on the witness stand and it doesn't rise to that level can call a witness to the witness stand and see what the redness is going to say and then if the redness canst the ridges can be impeached and that is clearly this fact pattern if you look at pages one ninety three through one ninety five of the drawing appendix to treat the witnesses hostile crowd turns to defense counsel now this would be a perfect time since one point of view for the defendant to sway some kind of objection and some of the cases there are attorneys who have stood up and said i want to or die or the witness i want to know what the witness is go all of this is completely fine under the law the government can have every expectation that the reason the witnesses ducking is because the witness is thinking about trying i would also listen to all of the jail phone calls from mr davis where he's talking to the witness when he was no ind i mean all we could have i guess what i guess i think i think the hope under the law is that when a witness takes their oath to tell the truth that they well i think realistically and practically our belief was that the reason was ducking is because he was under some pressure from his father to record his testimony and that there was a there was a reasonable likelihood that he wasn't going to testify truthfully and that's that's a realistic expectation that we're allowed to take but under the law are allowed to put that witness on the witness stand and see have him briefly testify that he was not present at the scene and that he really he woke up that morning and went to work and i think that's healthy because if you read the jail phone calls there's a great deal of discussion about davis trying to get combining all that i think there is a head first absence of testimony that comes out from j r and i think when you look at the sufficiency combining all of that with the fact that mr davis is the head of this household the gun according to heather's bennett for a couple of weeks  difference is as well and i think there are several differences the first difference that i think is critical is encrypted we knew the provenance of the gun so this is the fattest everybody all the defense witnesses agree it's the father's gun and graph and that the government doesn't dispute that it's the father's gun and they're basically just trying to say well the defendant had access to the guy and so therefore he has some ability to control the guy and that's not the argument that's being made here after all we have at least three and been any guns so the jury can take all of that together and say look who who's responsible for this guy right i mean i mean if it's reggie's gun was there or just say it's reggie's gun why are they all coming up with this and you combine that with the fact mouse and probably jail as well if you group it with jail transcripts phone calls he's trying to manipulate jr our jim bob sullivan had a gather all these people who are in his control he is controlling the people in the house so can't the jury infer from that that he's also controlling the gun and now this cone is also i would note out in the open the fireman griffin oddly enough i believe was in a closet there were other firearms who drew a grid on there were behind a refrigerator or in other closets there wasn't anything distinctive about the the gun that was found is very odd situation and griffen here those run down whether all of those other things that are found in the room that jr claims in his bedroom that we didn't charge him with but that's going it's out in the open it's says it's been there for a couple reaks this is not a case pure that access it's about access and intent the defendant clearly has the intent to control everything and everyone in that house and then you also have a specific connection case there was a defendant who was found in a house with one other person he didn't observe dealing drugs in that house there's a substantial amount of drugs found in the open and there is a gun next to the drugs the court said because he was in the drug trade because the drug and because there were drugs in the house and because that because mr davis for some reason had a crown royal bag tied to his inside the shorts that something else in the house that was in a crown royal bag must beyond a reasonable doubt the the impeachment was so critical and so to the issue that they were trying to prove that initially the government on the day of the trial stated that that this was the one