today's docket is called number seventeen days two zero four two zero united states of america versus henry lee london junior all the parties are ready to proceed right so you may have to s the court joshua late for the apollo and henry london the judgment in this case should be reversed and remanded for a new trial and counts two through four because the government is not able to prove beyond a reasonable doubt that its constitutional error was at trial the government admitted three affidavits and one letter all prepared by an out of court witness in anticipation of trial by failing to brief the issue the government has waived any argument that admission of those documents was not error the government instead asks this court to look at the other evidence the admissible evidence and from it to find that there was sufficient evidence to convict but this court rejected that line of reasoning holding instead that when the government admits evidence in violation of the confrontation clause the test been is whether on appeal the government can prove beyond a reasonable doubt that the error was harmed that is the government must prove that there is no reasonable possibility that the error contributed to the conviction the government cannot meet that burden here for three reasons the first reason is that the government emphasized the tainted evidence at trial first the evidence was in to size by its place at trial on the end of the second day the government rested then minutes later with no explanation to the jury the government reopened its case and recall an f b i agent and had that f b i agent read verbatim paragraphs out of the tainted evidence that signal to the jury second the next morning in closing arguments the government emphasized that same evidence saying quote yesterday at the end of the case we read to you parts of the documents that say that each and every one of these banks was insured by the f b i see on the date it was ro his case without explanation to the jury is that is that would you say that's correct wasn't there were a motion at the close of the evidence by the defendant to dismiss because of the prosecution and not put on evidence about the have d s t that's correct your honor the point is that the jury was not informed as to why the evidence was read in response of the motion to the government offer up a response a separate and apart from the need to put in these additional documents additional alvarado valdes i think it's significant that the court said given the emphasis the government placed on the evidence in closing there is no way to determine whether the jury would have convicted without that error what if the fact is obvious and i'm sorry i don't understand the question well let me put it this way is there any major bank in the united states is not f d i c insured there are your honor and i also think it would be incorrect for the court to take judicial notice of an essential element i know that the government when you look at the first circuit case from two thousand and ten iow they did talks about the fact that basically every bank's f d i c insured you don't need to renew it and they said in only ten and ten year period only two banks in the entire country lost their f second the first circuit in a well did not rule on that basis although there is about the f d i c and how it relates to banks the court ultimately found that the testimony of a witness was sufficient that the jury could convict on that and they sidestep the issue but i would say that it would be improper when there is no evidence or argument presented in the district court for the court to take judicial notice of the f t no it's not someone i'm saying i saw and there was some evidence i think you acknowledge it for that you're not  there is some of it you're saying it doesn't meet the harmless error standard of comerica the teller says we're after i see in short i saw a post in our bank i understand your argument that there's a difference between sufficiency the government is a much greater burden here on a harmless error i understand that but you there's no evidence if you point to any evidence in the district court from the defense that indicated this these banks want f d i c insured no your honor but i would respond that mr wanted to not buried burden first circuit side says these banks pretty much have to be insured yes sure and again i would note that what that law wasn't presented to the jury in this case but i would respond by saying that it's if this were a case of sufficiency we would be having some different arguments if the evidence was sufficient in this case it was barely sufficient the judge calls to you noted teller menge of our her testimony as to the comerica bank and i think that is remarkable and distinct from fifth circuit cases in two ways one is she is a bank teller she's not a bank officer so when the government cites to cases like guerrero all of those involved bank officers sometimes it was an officer vice president or wrong gal assistant vice are was simply a teller she had no role in administration as far as was presented she had no personal knowledge of the status the second is that in those cases cited by the government there was no testimony to show the base knowledge so it was permissible for the jury to infer they had first hand knowledge here by contrast mismanage of our made clear the where she knew this from it was from seeing f d i c notices posted in the windows and at the tellers  see we're just we're getting away from common sense because if i walk i've never asked one of my banks let me see your certificates i walk in there at the teller window it has that f b i see it's a gold plated thing i take it for granted then that they're responses to that the first is that it's the government's for him to prove it beyond a reasonable doubt but second coming back to the harmlessness question we would essentially have to be related gating the case on appeal that's exactly what this court decided not to do and that there is no way to know what the jury based its verdict on given that the government emphasized this evidence closing it is different than if we had just mismanage of ours testimony standing alone could the government and or could the jury infer that that was proof but instead the government in closing him to size we read to you documents that say on march twentieth of two thousand and fourteen on march twenty fourth of two thousand and fourteen these three banks were insured we know that's what the jury was told and we know that is what the government asked them to rely on and so there is no way the government can prove that its error was harmless because it was emphasized to the jury but i would also point out that another reason the government cannot meet its burden is that the inadmissible evidence being admitted for closed at least two lines of argument the mr landon could have presented to the jury the first is along the lines of what we're discussing sufficiency mr london but for the inadmissible evidence could have argued that the evidence did not show that at the time of the robberies the banks were f d i c insured the government admitted without objection three f d i c certificates they were dated one thousand nine hundred three one nine hundred eighty nine and two thousand and seven they range from seven to twenty five years before the robberies with just those certificates and then agent katz interpret in those certificates mr longdon could have argued that there was no evidence that seven to twenty five years later those were still valid certificates once the affidavits and letter were admitted he no longer could make that argument to the jury and then second mr london was not able to argue that the certificates in sufficiently proved these branches in houston texas were covered by the certificate the three certificates were labeled birmingham alabama laredo texas and dallas texas but for the affidavits that she said i vouched that these banks in houston are covered by the certificates mr landon could have argued to the jury that these are not proof that the houston banks that were actually robbed were covered by the f t c and so given that the government cannot show that its error was harmless this court and watkins the supreme court  fahy have said that one step is the court needs to look at the effect of the error on the conduct of the defense here mr london was barred from making two arguments he could have otherwise made to the jury was not harmless error the government cannot prove it beyond a reasonable doubt and so i want to come back just briefly to the sandals decision from the sixth circuit because i think is most squarely in line with our facts here the first is as i know the first important fact is as i noted that there the court refused to take the testimony of a senior investigator who said for twenty three years the bank has been f d i c insured it refused to allow that to be sufficient saying that simply knowing a bank holds itself out is not supreme court and then martinez rios in two thousand and ten when this court adopted the same test the government erred by admitting affidavits and by letter and then it cannot prove that it's harmless because it relied on those documents and foreclose other arguments that mr london could hours at about the five hour mark they asked for a magnifying glass this was far from an open and shut clear case and so yes the the end game the end result what we're asking for is a new trial on counts two through four certainly the of the evidence had established that each bank was f d i c insured at the time of robberies not only did the bank teller it from comerica testify that she knew the bank with currently f insured and that it was posted every teller line and every desk there was also testimony from the f b i agent not just any f b i agent your honour's he had six years experience at the head of the bank robbery task force he had investigated his unit had investigated approximately hundred fifty bank robberies a year he testified that he was the one who obtained the certificates and those affidavits and he  time i'm seeing we had sufficient evidence before the rule twenty nine motion and then i'm going to get to why it was harmless that we reopened and put those certificates and why the jury didn't consider them but i would like before the case was reopened after i'm just seen this is all the evidence the jury had to rely on besides the sure to be because in the prior discussion only the bank tellers didn't think that were they want to have gone to the rather extraordinary step of asking to reopen the evidence and that's pretty unusual you only do that if you think you're in trouble yes your honor the the defense had represented to the court in his r motion that the facts were identical to the plan for a case in which the court had had reversed the prosecutor said that they were not aware of that case the court was not aware of that case so the prosecutor in good faith found these certificates that squarely addressed the issue he was raising and it the government does now concede that they also had testimonial information in them and that they were improperly admitted but in the moment the government had five minutes to try and address this issue in which defense was claiming squarely the same as planned and i'm trying to show it was not the same as plain berg and the error if you would like me to skip to that part of the argument the error was harmless because throughout the entire trial the jury was never told to focus on c they were and it was never talked about and were dire it was never talked about in openings the f b i agent was never crossed about his testimony the teller was never crossed about her testimony so the jury never heard the rule twenty nine they had no idea that the defense claimed we hadn't sufficiently proven the f d i c and at the end of the rule twenty nine motion right before we reopened the defense had of course objected to us entering the certificates objected to us three opening but quote he said i don't think there's any reason for the jury to think that this is that big of a deal that was immediately before the agent ring took the stand and that's that's what happened here your honor this was not a big deal the agent came out quickly went over there so those certificates and they were almost never wrenching again in closing the prosecutor did briefly mention them in connection with all the other f d i c certificate information but it was maybe a minute of the closing defen had the perfect opportunity at that time to say this element hasn't been proved but instead they said you need not even focus on whether a bank robbery has occurred they conceded a bank robbery had occurred which means they conceded the elements of bank robbery had been proven they've focused their entire closing in on the identity of the bank robbery and the bank robber and they told the jury not to waste any time thinking about whether a bank robbery had occurred but only focused on the identity of bank robbery bank robber i'm sorry it keeps him being gregory there for the jury there is no reason to believe that the jury ever focused on anything about f d i c but surely that these certificates were just a blip on the radar and even defense conceded that there was no that for them to think it was a big deal but you have the burden on harmless there i mean as you can tell from my questions the other side out i don't know that our law our case law makes a lot of sense because every bank's f d i c unsure but the case law is what it is and it seems to me under that case law even on sufficiency review this would be a close call so then how do you prove meijer burden of showing it was harmless error when i think it's a close call under even if this were just efficiency and that's what i was starting out with your honor i didn't finish but the agent testified who had experience in hundreds of robberies that he would not have jurisdiction in any of these three briberies if the bank was not  insured and so therefore in his investigation he had determined that they were f d i c insert i feel that that is much stronger than the case this court has considered for example although in manner it was a bank employee he was not even sure if the bank was f insured and the court still upheld it because he had seen stickers so i feel that as far as this efficiency we had this efficiency at the time of the rule twenty five twenty nine motion as far as the harmless error the fact that these certificates were never never of were just merely a blip on the radar is why it's harmless error the other reasons it's harmless error your honour's is because because again f d i c was just not an issue i take it the jury the jury wasn't in the courtroom and that's when i joined when the government moved to reopen so the jury comes back and it's not a blip on the radar when they think everything's done and then all of a sudden the judge says no by the way we're going to start this thing over again i mean that's  significant unusual event in a trial how is that a blip on the radar how could the jury not a focused on something that is a centrally part two of the trial i don't think there's any reason to believe that jurors have experience with how things should go and they were merely just told agent can't is going to talk about one quick thing and i think anyone who watches any i mean people know what it means when a party rastan the case is over and then you come back and it starts over again well even defense conceded right before the jury came honor the there was no reason for the jury to think it was a big deal the government of course feels that way but defense also agreed there was no reason for the jury to think it was a big deal and that's from the record at p g thirty nine to return to the government's position that plan birth is not the same as this case and i would agree that was a sufficiency case the fifth circuit dismissed the case on sufficiency grounds and so when the government here points to the totality of the evidence i applying the wrong standard under hairy men versus astelin alvarado valdez it's clear that is not the standard to be applied in this situation second the government makes much of the jury not hearing mr london's claim that the f b i see element had not been kloof and it would be improper for mr london in closing argument to argue that the district court had a year in admitting that evidence he did not make that argument it also would have been erroneous for him to say that the evidence was not sufficient given that evidence that had been put into the record so he was not able to make that argument because of the error the government committed then i will note that the defense did not concede that the that is no big deal to reopen the evidence that quote come some twenty pages after the motion for judgment of acquittal and strenuous defense objections to reopening once it was reopened that sentence was uttered in the context of how to present the evidence over the defense objection the defense was arguing that it should be simply admitting a document there was no reason to bring in an agent and have him read from it to keep it from being a big deal but the government called the agent had him read from those documents it was not a defense concession that reopening would be no big deal and then last the manner case that the government mentioned there's a reason that that's different first is that it was a bank manager not a bank teller second it wasn't just seeing stickers in that case the bank manager testified to seeing the actual f d i c certificate and comparing it to what was in the windows so we come back to saying that the government simply cannot meet its burden and this court should reverse a man for a new trial and counts two thr