i'd first like to address the standard of review in this case there is some difference between the government and i over the standard of review my client was charged with witness tampering and obstruction of justice and counsel filed a motion in limine a to keep out and limit evidence concerning a murder of a gentleman by the name of the government argues in their brief that counsel did not raise an objection as to the under the four oath three balancing test in his brief but that is inaccurate completely inaccurate the government's brief on page twenty one says quote harris did not challenge that evidence in the district court on rule of rule four zero three grounds however  undocument forty three which was in the district court in the motion in lemony quote even assuming the evidence is somehow relevant under rule for one pursuant to federal rule of evidence for over three what limited pro value the evidence has the evidence has is substantially outweighed by the danger of fair prejudice to ms harris and would result and would also lead to jury confusion of the issues and mis lead to jury c rule four  three then the motion in limine went on to talk about the different types of trial tactics that are not that are forbidden by rule four zero three and specifically in the motion and the motion in limine in lemon counsel i was trial counsel said that the government wants to waive photographs of the murder of c o liz here around the courtroom this case is going to become a murder trial the why wasn't at trial why wasn't the evidence of the participation a conspiracy to murder relevant to show that your client acted corruptly in misleading investigators drawing case under rule for a three when does the evidence about a murder in a case where the defendant is not cuse to murder and not being tried for murder cross the line approximately eighty percent of this four five day trial was about the murder of seals here almost every single witness in the trial testified as to some aspect about the murder of stephany evidence is credited to the government as far as its presentation of evidence to trial your client's misleading of law investigate of law enforcement occurred within a few minutes of the murder right according to the government yes right now it's what the jury found yury found that she tampered with a witness and misled the law enforcement correct yes your honor and there are other areas of obstruction of justice that the jury could have hung their hat on and that is true your honor but in this case and i want to bring your honour's to a couple cases that this court decided to about where you should draw the line about four or three evidence in the end agreeing that evidence as to the murder is relevant as to the address struction of justice charge and opening statement the government capitalized on the district court's allowing in evidence of the murder of ceos here in opening statement the government told the jury that the evidence in this case will show that in the early morning hours of july third two thousand and twelve the defendant alexia harris lured a man named c e o little easier to his death they waited for her to get clear and then that and then they rang bullets down on the car executing silda lives here and from that statement this entire case became a murder case this entire case became a murder case and then i'll just six seven it's eleven circa one thousand nine hundred five over rule four three objection similar posture this court allowed evidence of a murder used by the government to establish that the defendants participated in a drug conspiracy so it's similar in the case where the underlying charge was in a murder but the the judge allowed in evidence to establish their participation however the court stated in that case this is a close question the government furnished only minimal details of the homicide and the government did not seek to introduce photographs of the body in this case and i understand what your honour's asking and it's difficult where is the line drawn in that case there was only minimal details in the court this court that was a close case in the case before in the case of dellec c harris there weren't minimal details days and days went on about this all year the details are important because we can't know whether she lied to law enforcement you know what happened right your honor i understand that but let me just point your attention to the government's  this is exactly governor is it's exhibit twenty one this is the composite exhibit i filed this is supplemental forty i don't know if a supplemental appendix i don't know if your honor can see this from there this was introduced at trial lazear was shot multiple times by a k forty seven it was this stream graphic murder the details of this murder when it went into explicitly including this photograph this is a photograph of the car being completely shot up and there's mr lazear is body slumped over in the car bleeding my position your honor is that there is no evidentiary value takes issue with what counsel said about this photograph being waved around the courtroom and that's accurate wasn't waved around the courtroom was put on elmo but when this picture was put on an elmo i was in the courtroom it's put up on to a six by six you can't come this in the details about the murder this is a group photo that does not show any contradiction this photograph does not show any government capitalized that again and again remember her brothers were on trial for murder for these this murder along with some other people and that's where they were and the murder happened two thousand and twelve they were indicted in two thousand and fourteen  ms harris was indicted for witness tampering and obstruction of justice and the witness tampering really came out from a bunch of facebook posts government alleges she was trying to get witnesses not to come to testify so uphold the jury conviction without some of these evidence that was allowed in violation of rule for all three this court has said in you and united states v hands that if the fundamental fairness of a trial in looking at a whole was compromised by the introduction of evidence in different inflammatory things that were said it doesn't matter whether there was enough evidence if those errors weren't there one reason to lead him to his slaughter again your honor this case was a murder case and it all of the evidence every saying i brought up the coun brought up in his brief the admission of improper hearsay the admission of coconspirator hearsay the admission of statements that that were in further conspiracy the admission of a protective order that was violated in the nathaniel harris case all of that concerned the murder of seals here the protective order this jury there was a protective order issued in the nathaniel harris case as to the witnesses there was an alleged violation of that protective order i don't even know exactly how it happened but the jury in this case ended the lexie harris case was told violent violation of of a protective order there is absolutely no evidence that ms harris knew about that protective order violated any protective order and the government was talk in that in the government in this case against alexey harris was talked about a protective order and governments in witnesses that had to be sequestered clearly insinuating that ms harris was the one that violated this protective order the government said it was more atmospher proof i don't even know whether the it wasn't even clear whether the witnesses knew that there was a protective order it's just well it indicates the dangerousness of the situation whether or not ms harris knew about it or whether any of the other witnesses knew about it i understand  can just finish my thought however the the protective order in and of itself and whether there was a violation did not go to any of the elements of the crime she was charged with this is just more evidence to possibly to actually inflame the jury jury confusion to show that this person is essentially being tried as a vicious murder in a witness tampering case i can see the balance of my time thank you your honors may please the court i'm david rhodes for the united states this case is about witness tampering and obstruction of justice but it's about witness tampering and obstruction of justice in an underlying federal proceeding that involved violent men including several of the defendants brothers and violent acts including seven murders this case could not have been told to the jury without talking about these murders one of those murders right and coleman that led to the defendant's appearing as judge proctor mentioned before the wind the evans and saying you need to be loyal to the harris family and if you're not it would be nothing for you and your four children to just disappear so there's another murder there and a threat of five more murders that's without even talking about the lizzie or murder another one of those charged murders was or murder and there yet again is the defendant's obstruction of justice where she made up that story fabricated from whole cloth told it to law enforcement in order to protect her brothers who were charged ended up being charged in the underlying federal proceeding and of course herself because she took part in it and the fact of the matter is we have obstruction of justice and witness tampering involving very violent acts here and there's no way to tell that story without talking about the underlying acts and it's particularly so when the defendant is fabricating a story because we have a burden of stablish into this jury beyond a reasonable doubt that the diff story was false in the first place that the defendant knew that the story was false and that applies both with respect to charged act for th three which was charged when she tried to get shaun white to provide a false alibi for charlie green because charlie green had been her boyfriend and he was one of the people who took part in the murder of c e o lizzie or so we had to show that this wasn't just somebody who is asking somebody to cooperate with a defense attorney that's not a crime just like we had to show this wasn't somebody who  just cooperating with laurent law enforcement telling them what she had seen that night that's not a crime either we had to show that she was obstructing justice so that's why all of this evidence came in and there was a lot of evidence about the murder but it's misleading to say that so much of this evidence was about the murder because most of the evidence that came in which came in through text of surulere was about her fabricating a story about the murder in terms of the murder itself we had very little evidence although it was significant evidence what we had was we had chris barton testify for about ten pages about the murder itself we had his friend john green testify to corroborate what he had said one page and then we had shaun white testify about it she had been at home when they started and she was there when the defendant came back afterward she testified for maybe sixteen pages that's not that much of this trial the vast majority of it was detective surulere explaining the story that the defendant told the investigation and all the reasons why that story was untrue motion in limine e where the court said this murder evidence is relevant we're going to let that in we mentioned the defendant complained about the possibility of our waving around photos which i understand we explained the five photos that we intended to introduce the trial one of which is the one that you're talking about your honor that that shows the deceit it and the court said at that hearing well this evidence is relevant if there's anything inflammatory would deal with that i'll deal with that at trial anything that's particularly inflammatory about the murder then a trial when we offered the evidence these five photos the same ones that we have described there was no objection by the defendant to the introduction of those five photos so that's the backdrop for how these photos came in and several of the photos showed a variety of things they showed where the shooters had been because they showed where the shells were they showed where this phantom mercedes benz truck could not have been the time they showed the shots going through the pass and the close passenger side door of mr liz ears car which showed one that the defendant hadn't been just jumping out of the passenger seat because once she would have been hit into she wouldn't have had the wherewithal to close the door behind her and there's the one photo that you're talking about which showed the defendant excuse me  got a clear on the passengers and then you've got this on the driver's side but all you have to do is read the blood in the body right here you know i mean you can see cover that up and just say there's so so you're saying this i say about that two things i totally understand your point judge how one is it shows part of the defendant's story was that mr  who these people were knew that they were following him he said he was prepared he had his gun on his lap and herstory said as they parked in front of her house this truck came up alongside them so that suggests that he would have taken some action when these people were there but if you look at that photo i'm not saying that's all that tells the whole story of the photo but the implication from that photo is that he was surprised and he did nothing of this even if it was yes it is somewhat prejudicial but given how many bullet holes went in there you've got to have the bombing we know exactly and you can be confident that there are folks much more explicit photos of the deceit and there i understand your point completely but we're talking about a photo that just shows what the evidence already established that thirty to forty bullets went into this vehicle while he was sitting there and so that is not going to change the outcome of the trial your honor if i can explain a little bit about the standard of review issue and to explain i don't think the standard remasters at all here because this evidence clearly was relevant in fact there really was no way to tell this story without talking about this murder but the defendant had filed a motion in limine which he referred to and he said in there that this evidence about the murder wasn't relevant because the indictment charged threats against witnesses and that might be true because the original indictment didn't refer to the lies to law enforcement but in the meantime we had filed a bill of particulars that identified both allies to law enforcement and trying to get le sean white to provide a false alibi we listed all four of those so  so at the hearing on the motion in limine e that's when the court said i'm not sure if your pleading the indictment covers these things the way it is pleaded right now so that there was an issue there about the relevant i guess in theory the relevancy of this evidence with respect to the original indictment and that's why we obtained a superseding information with the defendant's agreement after that that specifically included all of all four of the charged act so at that point the relevancy objection which was based on the original pleading went by the wayside and therefore i mean we're not saying that the defendant didn't argue this initially or maybe that's the way it looks from the brief what we're saying is once we had a new operative pleading the superseding information his original argument no longer government his original argument with respect to the motion and lemony but that's neither here nor there because this evidence was so not only relevant it was so critical to the case and if you look at the evidence that came in other than perhaps that one photo which really just visualized the the murderous acts that occurred as the result of the defendant her brother and the two other coconspirators who took part in that so that's that would be harmless even if it were wrong and again the defendant never even objected i mean if he had objected when we offered those five photos and said keep that one out or take that offend out of it they could have had an argument the court could have made it how to decision on whether that should come in but that didn't happen because the defendant didn't object to the introduction of that evidence so unless the court has any further questions i don't know you know thank you honor as to the superseding information was discussed at the motion in lemony and it might have cleared up counsel's argument as to the relevancy which is for a line but as i told  honor judge proctor that i'm conceding that it is relevant under for a one but were essentially here or there are a lot more graphic pictures that could have been introduced of the well there was everything to autopsy photos there was a lot of there were a lot of photographs where there were pictures that were more graphic than this one either were not offered or not received that's correct that is correct our district court indicated at the motion lemony hearing that it was aware of issues she clearly ruled as to that as at the motion in limine an argument which went on for over forty five minutes that these were coming in and so at trial remember this is eighty percent of this travels about the murder of c o lizzie or those photographs which we'd already looked at didn't come in through objection because there was a definitive ruling as to those and and she wasn't going to let in any others but there was a definitive ruling as to no section as she looked at my recollection is my recollection as your honor also as to the by way look at that transcript that you say there were more gruesome photographs autopsy did she see those at all or just the government never presented i don't i don't think the government has to some of the extremely graphic one was here there were a lot more  and prosecutor always wants a lot of grass the only thing i would just she didn't see all these all that no she did not around all she saw with these five she might have seemed some some more i'm not one hundred percent certain but she did not see a large portion of them so the only thing i'd just like to close with briefly your honour's is that as this court have said there is there is a line that can be crossed under for three analysis and in this case it did happen chris barton the government stated did testify he was actually the getaway driver he testified in detail about the murder of c a loser he was never even tied for the murder this case  going to take a five minute recess before the next case