thank you may it please the court justin hunt with the federal defenders in montana representing mr david cross the in this matter mr crosby's defense before the trial court before the jury was that he did not knowingly fail to register as a sex offender the government's case and key to it was that he had received advice from stephanie harmon who was an employee with the fort morgan police department that he was to within twenty four hours of traveling to another jurisdiction check in with that jurisdiction to determine whether he needed to register there as well he was more than just passing through  e got a job that lasted what a week seven to eight weeks your credit just or his daughter or his girlfriend's daughter in school greg correct signed a two or three month lease with the landlord the lease was month to month so when there's been told all along that he has to register which liberal he was told in colorado that he needed to register and did so every ninety days he was compliant with that registration he was also told that if he was going to move to new york that he needed to talk with the sheriff's department and give them that address and he did that as well what happened in montana was in traveling to new york the his car broke down and he had no money he needed to get a job and he needed that time in order to pay for the parts for his vehicle and the initially registered under sorn in colorado he signed a series of forms he did and didn't that tell him that any time he was in a jurisdiction for any length of time he had to register i believe it did however i will even if we ignore the testimony of mrs harmon substantial evidence that he was where of the registration records run i don't believe there is substantial evidence that he was aware of it he did what he needed to do in colorado to try to find out what he needed to do if he was traveling and key to that was asking what needed to be done stephanie harman indicated that she had told him to register or check in within twenty four hours of entering another jurisdiction he testified that he did not receive that advice and the agent who also spoke to stephanie harmon also indicated that he even though stephanie harmon indicated she had told mr crosbie that advice he did not have that in his notes so that was a key piece of all of evidence that the actual key piece of evidence for the jury to consider whether he actually knowingly failed to register because if the jury believed that he hadn't received that advice he wouldn't have done it that he didn't act intentionally or voluntarily i think that that goes to the knowing element and that was for the jury to find and then we leap forward to the closing argument where the prosecutor in closing argument indicated that stephanie harmon had no motivation to lie that she could be believed the prosecutors that she had no dog in the fight closing the you think was the problematic piece was the dog in the fight and then in rebuttal when he indicated that it is reasonable for the jury to believe that she actually for you to believe that that's true that is correct and was the prosecutor believe it he indicated that the jury should believe her he had the prestige of her employment at the police department her authority in registering sex offenders but here's my problem voting is always kind of tricky because the prosecutor obviously trying to persuade the droid believe the testimony that comes in on the prosecutor i suggest you could think that she's telling the truth and would be reasonable for you to attach importance to those reasons why can't you say there because in doing so as he did here he linked up what is for the jury to decide that she  believe to be believed that she actually gave that twenty four hour directive he stated it is very reasonable i submit to believe that mr harmon did in fact tell him that  judge just reciting the standard that is to say is there enough evidence here to convict it would it be reasonable for the droid to say it's not saying you should now it may be that the jury hears that a little differently than a lawyer would hear that  i don't believe that that is true i think that they by hearing that it's reasonable for them to believe her and not just because she gave that directive but also because it's her job it's her job that's what it entails but that's back into reasons why they can or should or should not could or could not decide to believe that's it back and ok here's some reasons the bear upon whether whether you could or could not believe i mean that's that's perfectly permissible to say i don't feel it i still think that in this case he crossed the line by buttressed saying that she is a police department person and that she does have some dog in the fight too to give him proper testimony or incorrect testimony here's what he says precisely so maybe we can look at prosecutor talks about the jury instruction number nineteen and it gives you several things to take into account when evaluating credibility like memory manner interest in the outcome bias prejudice contradiction of testimony etc so so far he's on clean ground is that right when he's explaining or reciting what the jury instructions yes i think that that's proper to resign with the instruction says something then he goes on to say like i mentioned before it doesn't matter for stephanie harman whether david crosby did or did not violate the law here any problem with that i don't see a problem with that ok she's not the one on trial she's not on the hook for anything and then he says magine what the motivation or bias or prejudice is so he's still on clean ground right i think he's walking a fine line especially given that mr crosbie has a presumption of innocence but i can go with that that is still in line with the to the instruction and then when he goes on to say her job is to counsel sex offenders that's a factual statement right and to tell them what the requirements are that's a factual argument correct that is correct so it's only when he says that it's reasonable that she did in fact tell him that that's where it crosses the line and yes i agree with you your honor thank you you want to save the remaining time for rebut the jury in his closing arguments the prosecutor makes clear the the it is your responsibility to evaluate the credibility of the witnesses so all of this is in the context of proffering for the jury it's the government's argument towards what those bounds are the tools that the court gave the jury with respect to  their determination of what the credible in order to make a credibility determination and as as judge mccune and defense counsel walk through the arguments reading through the jury instructions arguing from those elements the prosecutor walked through that line with respect to that last statement the prosecutor says it is very reasonable i submit to believe that mr harmon did in fact tell him when that's what she testified to and that's what our job entails that i submit language is the language of this court has indicated it's a preference oh well the reason i bring it up it is something this court has noted before and i bring it up in in particular because that's the only place where there's an eye i isn't degree but certainly it isn't valid shing to the extent that would implicate plane air review in this case the this court looks at a number of different factors in terms of determining whether or not it's close to gets close to plane air there's no indication here of that the prosecutor was relying on evidence outside of the record there's no indication here the prosecutor was putting forward his own beliefs there's no indication here that the government was either indicating that the either the government or the court was somehow monitoring in anyone's truthfulness those are the factors tha this court has looked at and to go to the point the judge hawkins addressed earlier in terms of the weight of the evidence the failure to register under  a it's a general intent crime it's not a crime that requires willfulness that requires as an element that the defendant knew this particular the in and out of this particular statute least eighty days the that he got a job an accent or all of that is sufficient the fact that he said that his intention in doing so even if you credit his statement his intention in doing so was his belief that he had longer to register that avails him no more than a speeder who travels into a school zone or a construction zone might say i i didn't know that i passed into that zone in the speed limit with down so even looking at the strength of the case even crediting him that there was still plenty of evidence to convict if the court has no further questions so i'd like to address the context again of when this statement came in and if you know since we have gone through the context of it leading up to it and we have as we've gone through we get to the point where the jury could then understand that there is to be there to be believed miss harmon actually gave that directive that context leads up to his statement that it is reasonable for him to bill for that for them to believe that she actually did this and that is where the improper vouching a curse because that is the issue in the case and it determinative of whether he actually knowingly failed to register so on a plane or standard i do i don't believe that this is a harmless error it doesn't affect the fairness of his trial because that is the issue for the jury to decide he decided it for them he concluded it for them by asking them to believe ms harman over mr