i would like to begin my argument with discussing the figures analysis and discussing the initial in court identification in this case be nearing  l in court identification procedure and i believe there are several reasons why the court should extend figures to that situation first the real issue is whether this court believes that  id procedure can be the basis that if you process violations and i believe that there is a lot of case law on that point and that that weighs in our favor first then that we could agree with you on that but here are the telerate seen this family jump over the fence twice and he was caught in their car when they had the run then he was caught in the blue car when they had the accident seems to me there is very little doubt as to who this guy well it's and that he was involved well there's two robberies to consider yes there is the may twenty fourth robbery and the june fourteenth you know that's why i refer to the fact he jumped over the fence twice i guess the first time he jumped over and tried to jump over it three times but the only in court id and the only id in this entire case of mr aiken's as the robber occurred from the first robbery which is the are two separate events and and if the court is in agreement that bigger should be applied to the initial in court idea and i don't need to go through dominance and judge schroeder's i think well reasoned and persuasive dissents i mean i'm a ton of other evidence in this case well there isn't there there maybe on the june fourteenth robbery but there really is not on the may twenty fourth robbery are two sufficiently similar so that one could be regarded as m o evidence and with respect identity on the other well that's the question the certainly argued and argued as an identification in the record and that he was identified by miss navarette and defense counsel did argue that there wasn't a positive id in the domino pretty much took on this issue and decided here's what we're going to do and so now we have a case where everybody relied on doma and you're asking us after the fact to undo the whole thing and start all over again i mean domino just seems to me to be the law of the circuit and out o control in this case and i would agree with that your honor as of right now and i think defense counsel raise that big plate ability of diggers to the district court so it's not like a blindsiding situation where the court was unaware of the argument that bigger should that the abuse of discretion to the extent that dominant applies i think is distinguishable from this case but i'd also suggest the court that we're looking at if you process situation here and that's a constitutional violation and  in this context the idea that an out of court unduly suggestive identification is subject to biggers protection but the same exact identification procedure in court which is even more  them could identify mr higgins as the robber from either the may twenty fourth but they could identify the robber as the robber and they didn't expect the question was who was it but they said it was the same person they said it was the same person but i think we point out i point out in the brief that person other than their belief that they had been robbed three weeks earlier and when pressed on cross examination they couldn't point to a voice they couldn't point to anything in fact that identified the robber as the same it was julie suggested circumstances and the tellers belief without more that it was the same man from the fourteenth and may twenty fourth that could not be identified by either tell it well was or sufficient evidence for the jury guy in the blue car turns out to be the fellow we got there at the defense table correct but that's that's the june fourteenth robber that's that's the well but we've got to go back if it was the same who did both and he's caught for the june fourteenth robbery then you're beginning to have enough evidence put together and when the first teller talks about it invocation in the courtroom she's very careful she says robert i seem to be the same man tell her that the jury could say well that wasn't really a sufficient again to pick a nation i don't see that we've got a real problem about  i know that i know him anywhere i sat with him he kidnapped me for three hours that is a factor to be weighed in the favor of upholding such an identification and finding identification reliable despite the witnesses say it is their belief but i think in the brief and throughout that there is a huge distinction between the first robber and the second robber and that the belief of the tellers is not substantiated by the same gun same mask them in the whole testimony about the may twenty fourth robbery and the distinctions between the may twenty fourth robbery and the june fourteenth robbery that there is there are various inconsistency that are not minor there are major inconsistent we'll do that and i'd like to move to the dog or issue on the made a request and the court denied it as untimely but and also stated that it would not exercise in the first instance the gatekeeper function and instead allowed some opportunity during the trial counsel after the witness had been qualified as an expert after the witness had rendered his expert opinion that the prints on the gun matched mr akin's and after all the evidence was in and records emanations of cross examine him regarding d'albert issues and that the government is of the opinion that that after the fact inquiry is sufficient to fill the court's gatekeeping function well i can't find any objection to the fingerprint experts testimony was there an objection or was that it was contained in the delegate motion which is in the excerpts of record in its entirety for the court and said we object to the fingerprint testimony and examination at trial on the issue of the reliability of fingerprint of a that's correct that's offensive counsel opted not to cross examine on the daubert issues after the testimony of the expert and what does that mean well you know witness testified and the procedure that you adopted in the methodology you adopted it's a little out of the norm because it's not done in many contexts but allegory court upheld the district court's using one ear and out of the presence of the jury and permitting defense counsel to make whatever objections on the record prior to the witness testifying in this case the court specifically set i'm going to let that the witness testify and any objections you have will be after the fact and what our position  is is that the case law requires a district court to make that reliability determination before the witness testifies and that there's not a case anywhere that can be cited that permits the after the fact reform three inquiry to be sufficient to fulfill the court's gate only evidence indicating that the defendant as opposed to his codefendant who was also picked up in the vehicle was the actual robber and so in that in that context it's also the basis for his sentence he received twenty five y sentence on the first gun count and consecutive seven year sentence on the second gun count so it certainly has i believe in fact substantial rights and is an error that should be reverse every case that talks about it talks about it as being at the outset and described it as screening the evidence as if there is no case law that indicates whatsoever that  good morning my name is kessler store for the united states i have just a few points to make on the in court idea and then i will move on but the first is that the defendant was not the only black man in the there's you say they're visible i can't see the person in the gallery behind you because you're blocking me were where's the evidence that they were visible i can actually provide you that the record at the government excerpts of record one thirty forty one thirty five however shows that the witness could see the m at the bottom of the government's excerpts of record page one thirty four the government asks never at counsel asked you questions with respect to whether or not there are any other african american males other than the defendant in the front part of the courtroom there are actually two other african american males in the courtroom are there not answer i'm looking at the jury question looking at the whole courtroom answer looking at the whole courtroom there is more than one question and in fact there is a bald african american male in the courtroom is that correct consideration of any everybody else in the courtroom just going there and thinking she's being asked to identify that person a proper question if it wanted to call attention to the possibility that anybody in the courtroom might be what it said looking in throughout this entire courtroom including wherever people are visible to do you say with that wasn't the nature of the question listen well the question was very open was no pointing there was no singling out the defendant at the government's excerpts of record page eighty seven the questioning precedes a question if you were to see this individual again today would you be able to recognize and answer yes question do you see that individual in the courtroom today take your time it's not right you see the person in the courtroom today answer i can't say for sure he does look similar question when you say quote he does look  pretty much weight on that in terms of evaluating whether it's under lee suggested because i think as our case well recognizes the natural inclination is to look to the defense table so unless specifically directed to consider everybody in a courtroom in other words educating the witness not just take your time and is there in the courtroom is hard to say with cures the problem that we should give any weight to the fact that there may have been some others i think you know this is apparently from what you've read wasn't exactly focused on in solar called her attention i don't disagree with the court and that's why it wasn't included in the government's pre five pointed out only to asked the court to look at the back of the government's excerpts and record at page two ninety seven there's actually a picture of the blue car after the crash the getaway car that in included the two the driver and mr reagan's and you can see the gun there on the dash on the passenger side of the car wedged up against dashboard and the defense the government argued that that the placement of that gun i consistent with officer holder's testimony at trial that he saw reginald wakens get out of the passenger side window of that blue car that as he was getting out he had the blue bag over his right shoulder all of that shows that this print really only proves that originally constructed the gun and that's exactly what the defense counsel argued and in fact the defense counsel argued that that was evidence that this was not the robber because the tell common in cases that we should require as counselors and lighting is to rule the daubert hearing in fingerprint evidence must occur as part of the gate keeping function before other witnesses testifying the government would not advocate such a rule especially in the context of fingerprint evidence which is historically been admitted in court and considered do not sure i remember the case well it's a dog case about the admissibility whether you have can whether there's a global district determination that fingerprints are admissible or whether in each case there's the possibility of a dollar here and based on the evidence  i case in prime concludes that in each case a dog or hearing is is possible even though sixteen thousand other courts have decided that fingerprint evidence in those cases can be admitted but here on this fingerprint thing it appears to me th challenge was the night as untimely that's what happened that is correct and the way i read the record it actually came in after the jury was selected is that right that may be correct i would have to preclude you from attacking this in any way you want when the trial goes down that is correct the defense attorney prior to trial filed a motion to vacate the trial date one week before trial and she explained that she wanted to make a decision if the fingerprint evidence was a positive if her expert concluded that there was a positive identification she wanted to challenge the reliability of the methodology if however her expert concluded that there was not a match then she would san francisco police department processing was slow that is correct the defense counsel had been provided with a number for the f b i agent but because her expert had contacts with the police department chose to go directly to the police department and had trouble and didn't notify the government or the court until a week before trial you'll be entitled to use that by way of cross you also have an expert as you stated that actually will be permitted to explore those areas as well so the judge says go ahead that's correct and that and then nothing happened as far as i can tell that's correct in fact when he government turned the witness over to the defense the defense counsel asked questions about the placement of the prints and about why there might not be concern the bottle etc etc but did not ask not ask any questions with respect to the reliability of the methodology and the district court actually checked in with defense counsel and said are there any other questions even the court asked of you and then after defense counsel said no the court decided to do it itself turned to the witness and asked questions eliciting information about the reliability of thing and methodology i have nothing for them as the court has questions no thank you thank you fingerprint expert was not given access to the evidence by the s f p d crime lag lab and there is a representation made that the request for access had been made more than four or five weeks before that on march fifth there's a pretrial hearing where the issue evidence on march eighth there was a telephone conference where the district court denied the motion as untimely and on march eleventh after jury selection the court permitted counsel to put the issues that were resolved on march eighth on the record hire was very careful but everybody made a record as to what is going on i would also just comment briefly i realize my time is running that i don't feel pushed ok i always get nervous when the red light gets sorry that or come home time and bill already the tenth circuit case that reversed on the dull british you have you know acknowledge the great latitude that a district court has and making adelbert reliability determination but the discretion in choosing how to make the likely determination is not the discretion to abandon the gate keeping function altogether and that's what the district court did arguing that you can never deny motions on timely in connection with exercising the gatekeeper function  i'm saying that any time a party challenges and makes a request i think that the court could have denied the motion as untimely and still fulfilled its gate keeping function the court could have said i'm not going to raise all the thirty thousand you know scientific issues and and all the treatises that you have put forth that's the unreliability but i'm going to fill the gatekeeping function and make a preliminary assessment on the prompted the court at my ex took the record sixty two is saying look i'm not much dancing around here here's what i'm saying i'm denying in the first instance the gatekeeping function that implicitly he understood was her request that she that he make some kind of a not and my argument on that point is pretty limited which is that this prince and then the patient of the print is the sole evidence that links my client to this weapon and as such it affects his substantial rights but that's really the only argument i can make on a harmless error basis in good faith at this point but if i could also just raise one other issue that i really meant to address with the court i got kind of very focused on the bigger issue but i also wanted to address the argument very briefly that even over too much but in which have the court found there was an abuse of discretion because the court took preventative measures to make sure what the witness record recollected in this case the court took no such preventive measures measures and then i think even under them with ha yeah yeah