defendant in a joint trial without an opportunity for cross examination was so highly prejudicial that jurors could not be relied upon to follow limiting instructions to apply  third verse the sixth the eighth they've all said that the brutal rule applies only if the statements are testimonial that that's correct however crawford did not explicitly overrule brewton and i think it given the opportunity to reconsider brewton the harm which was so sore to be remedied in brewton has nothing to do and is unaffected by considerations of whether the called defendants confession was testimonial or non testimonial bruton is primarily concerned with harmfulness and whether a defendant can get a fair trial in light of a codefendant confession which facially incriminate him i thought it was really based on a confrontation i the decision definitely stated that it was based on the confrontation clause however there is some indication that if given the opportunity reconsider the issue the court would exclude those special evidentiary considerations such as in brewton on the due process basis something has to fill in the vacuum created by crawford excluding non testimonial evidence in this fashion because defendants cannot get a fair trial this is why the court specifically recognized in brewton that jurors could not be relied upon to make this subtle distinction it's a special evidentiary consideration so well in the district court you you you objected on confrontation grounds not on the due process cro actually they objected both on the due process grounds they cited a brooklyn law review article which basically suggests that bruton should live on post crawford under a due process analysis so that was raised in the lower court it didn't occur to him to hadley's as any court of record agreed with that in a published decision no your honor the only the closest thing that i can get which i cited in my brief was concurring opinion the judge justice harlan gave indicating that at least as concerns testimonial evidence he would be prepared to rule that the due process claus well we're talking about non testimonial cases where the confrontation clause is not being satisfied and so in those instances the only due process clause can protect the integrity of the trial as far as the defendant is and to be convicted based on evidence and not based on rumor innuendo or hearsay but you take judge prior's point if you can imagine a venn diagram of the due process clause excludes all of the stuff in the confrontation clause excludes the stuff then what is this doing what independent b where where would there be a confrontation problem where there wouldn't be a due process problem under your there e well this case is a perfect example of that because only because i'm saddled with the stoop making coextensive at a minimum confrontation and hearsay are you and due process or are used to using due process to completely engulf confrontation process is certainly a broader concept than the nearly confrontation can ask you a quick question so you mention you said the closest i can come on this due process analysis is a concurring opinion by justice harlan in which he said at least with respect to testimonial evidence he would be prepared to so now we're back to judge priors initial question that this evidence isn't testimonial and so if that doesn't get you crawford it doesn't get you due process under harlan's analysis that's true but bruton has nothing to do with the dichotomy of between testimonial and non testimonial evidence rutan is not concerned with that at all it's concerned with the ability of a defendant to get a fair trial and it's pacifically finds that isn't lawford concerned with that too isn't prudent concerned with that too yes they both are but crawford goes off on a tangent of of some historical missa now is this of of whether evidence is testimonial or not testimonial scraps the roberts tests of reliability and britain is neither concerned with no law or delivery us not forget it's the supreme court the united states does bind it by and that's that is certainly true but my suggestion is a year agree with that crawford or not yes but there are certainly other evidence that courts consider mr you're over your allotment now  so i'd like to address a different issue if i may and that is email not eve had enough time  says mr david ou the court there's we had several issues and in the limited amount of time we try to get to two if i can and i want to start with the first and that's the limit statute of limitations issue in thirty two eighty two and this is another one where the  every circuit to address this would say we don't have a limitations problem here i know i disagree with your honor's because the cases cited by the government related to this have nothing to do with the issues raised in what we've raised before the court i mean the application no doubt placation corrector on it isn't they were isn't it some with anomalous that no court has raised the application note as a to reach the result that you advocate  no i would disagree with your honor because all i can find and we cited it was the new hampshire me new mexico case it was a district court case and in that case the analysis that came down from the district court judge was quite favorable in essence what happened in that case when we're looking at it they made the argument that's the only case i can find where that argument under the application note is made and the district court judge there says but for the fact that you are charged with a capital offense and don't have a limitations period then you know i'm not going to get to the merits of the application because there has to be essentially limitations period what would be left under your reading of the application what would be left of  the statutory five year extension itself a significant amount so you could double the statutory extension hence the purpose and that follows directly in line with the law and what i'm saying is i don't think you understood this question let's try again as so on your reading of the application note correct it seems to me that it defies common sense because you would render the statute essentially toothless for the cases that the thirty to ninety seven seems designed to reach that is instances in which the applicable limitation period to quote has already expired if the applicable limitations period expired we can't not read the after in the application oh so it says before on or after i will grant you that the after does create some surplusage but i mean if you read the text of the statute itself the plain terms of it make clear that it applies here it seems to me and i think your difficulty is these are the cases that we cited your honor and i understand your honour's review of it but the cases that we s one very simple analysis and that is that criminal limitation statutes are to be liberally interpreted in favor of important repose but even granted that aren't you reading out of the application note the words the date of the enactment of the section it anchors the whole note this section if you keep going if at and if the applicable limitations period has not yet analysis in the new mexico case that we cited and the way that that judge came down and when you say i'm making it toothless were not it extends it five years within the applicable limitations period if the act limitations period expires you all you don't you don't get those five years and that's how it falls isn't the whole point that if the applications period has expired and new d n a evidence arises then it extends the statute five years correct within the period so you can get up to ten if the d n a evidence is implicated in the in the last year of the period it doesn't render it toothless it renders an additional five year period within it so you have five more years and then the whole point of that is just to bring it to indictment once indictments made it's good for ever so essentially if you can't get to the indictment once you make implication in the first year you have six years second year seven years third year eight years it would have been we get the point of the arithmetic would it be surplusage if we were in a situation in which for example the d n a evidence showed up the day after the enactment of the austins or two days after minute was right on the cusp and the after would address those cases that were near enough to the date of an ac but not so far out as to create the completely the surplusage that judge pryor has described i think if i'm understanding your honour's question we would have to we have to measure the date of genesis so what's the date that starts toll what's the date that starts running the expiration i don't think i'm making it biblical would go ahead but if you start reading the beginning of this where the tolling period begins or where the limitations period begins this does not a vis or rate the date of the offense the date of the commission the offense it does not it doesn't intend to eviscerate the data commission events so the date of the commission the offense starts the tolling period and then for which if d n a evidence is discovered you get an additional five years is your best case the new hampshire case that says i'm not going to consider this on the merits of the argument because i don't need to no no i want to get to a merits argument it appears on running out of time but that would be correct you are but could finish your answer and so it is it to get to that that what your honor saying and i've reserved two minutes in rebuttal use a rebuttal time this was a case that was a very very close call there was not a substantial amount of evidence and i'll get into that with my last  good morning your honors and may it please the court beginning with the statute of limitations issue the text of section thirty two ninety seven does not support on those interpretation beginning with the text of the codified portion itself it says in short that the statute of limitations begins to run when d n a evidence implicates someone what hano tries to do is to read in an extra st an extra requirement that simply doesn't appear and you know the text itself that additionally that d n a testing has to occur during the original statute of limitations that simply isn't there to read that additional step in he looks to the application but the application note doesn't say that either the application note you can divide it into two parts the first part is that the amendments made by this section shall apply for any offense committed before on or after the date of an act and in essence the statute of limitations applies prospect of early and retrospectively but then the second part puts one qualification on that and that's if the applicable limitation period has not yet expired has not yet expired by when will the only date referenced in the application no judge rosenthal pointed out is the date of enactment to reach on his interpretation you have to read in a separate date that isn't referenced in the application has not yet expired when the d n a testing occurs so this is an interpretation that relies upon implication upon implication and the result is this two step process where the statute of limitations will run somewhere between five to ten years and there's very little logic to that statue interpret to that sort of statute of interpretations on the other hand our reading which is it's true that no court has directly addressed to this argument but our interpretation is consistent with the application of every court least every circuit court to have reached the issue i mean it makes sense given that congress and the legislative history is discussed in the purpose behind the statute of limitations and some of the cases we cite that congress recognize that d n a evidence is uniquely reliable in its reliability doesn't fade as does its other evidence so they wanted this to apply to an offense no matter when it was committed but the constitution places limits on that that's why we supplemented the twenty eight j of the stock in our case our interpretation of the statute of limitations along with the application note makes it apply as broadly as the ex pos allow so it's a result that's both consistent with the text and as a matter of logic makes sense and is consistent with congress purpose there are no questions on that issue and briefly address the bruton issue dealt with testimonial statement a confession to a postal inspector and the score or the supreme court has subsequently clarified that the our confrontation clause applies to testimonial statements and in this case we're not dealing with a testimonial statement is there any court that is framed the issue under the fifth amendment due process not that i'm aware of your honor i the defendant if you've got a testimonial statement you don't need to take that step and that right i i can't say that there doesn't exist that case with certainty your honor but i'm not aware of any such case only the eleventh circuit is was a brooklyn law review article submitted to the district court without any real discussion of its kind and that is that make that argument does it make that this due process or given is that the point of the article or your honor i i don't recall whether or not it did i'll take his word that it did but i would point your honour's to the transcripts document to seventy one at page one ninety two aristeas counsel is specifically ask what is the basis of his objection and he says it's rooted in the confrontation clause so whether or not it might have been hidden in this law review article only the confrontation issue the district court where if i go read the article and it is just about due process and i think it's enough to have raised the issue and let's say it were not reviewing for planar where instead reviewing should be this court should recognize a right rooted in the due process clause the first even under a plain air standard one thing we would be able to look at is whether there was if we if we determined there was no error right  or there's no error it would be anomalous and several of you pointed out to have all this analysis to have the framers create a confrontation clause to deal with this issue  have courts analyze and frame what that confrontation rights meant for that all to essentially be discarded because there's a much broader right to confrontation in the due process clause and given that broader right and the expansiveness of it do you have any again we're sort of predicting would the inability of curative instructions anticipatory or not the kind of instruction that was given over and over would that still be as limited as it is under confrontation  would the instructions serve any more robust purpose to support the legitimacy of the verdict and they do under the under confrontation a different from how we treated with confrontation right yeah i could never instruct in a way you would just be confronted with a mistrial if you were the district judge trying to do the right thing i agree with that your honor it seems like the analysis in brewton which hasn't been overruled would still apply and contacts due process becomes the same as confrontation are much broader then and therefore at least as robust then i think you're right which raises a series of concerns all by itself yet that that would raise a number of concerns but that predicated on the idea that there is more expansive right in the due process clause and to find hasn't articulated exactly why this court should find it in the due process clause that procedural due process that requires notice and an opportunity to be heard there's no argument that that was denied here is that substantive due process well that ordinarily requires a finding that it was rooted in on the mantle of ordered liberty and there's no showing in that  no showing on appeal that this is one of one of those rights at least this more expansive version of the confrontation clause so for all those reasons under  issue i will i will take whatever you want my new issue you want to present you can certainly give your own an opportunity to say something about that you won't have an opportunity to respond to but that's your that's your call i  think my mind's been changed or out or if there are no further questions on any of the issues we will rest on the remaining issues on the arguments in our brief and ask that this court affirm thank you  can i ask you a quick question just as you get started and it is about this sort of the interaction between confrontation and due process which in those the heart of your argument it dawned on me this is always dangerous as i said yesterday to think out loud but i want to go ahead and do it in addition just to the logical oddity of confrontation being sort of enveloped by due process in the venn diagram sense i actually think that there is a long line of cases both in the u supreme court and in our court that says very specific textual guarantee addresses the issue you do not range beyond that text will guarantee to notions of due process as sort of a safety net now we've typically addressed that in the substantive due process arena maybe here we're in something that looks like procedural due process maybe where not but either way doesn't the same analysis apply like why is it that if the guarantee that addresses your issue which is the confrontation clause if that argument fails then you get to say well never mind that failure now i'm going to sort of resort to due process i think the supreme court and we have said no no no that's not how constitutional law works  i understand your point your honor but crawford the answer to your question is that crawford did not overrule brewton and this particular case deals with anon testimonial statement and the court has not addressed that so it's still open for consideration whether the process clause applies in that context but i would like to devote my time at or does that matter that as your adversary says that the  to be confronted with a a facially incriminating statement by a codefendant when they can't cross examine that person at a trial that's the thrust of brewton brewton has nothing to do with the dichotomy between whether it's testimonial or non testimonial whether it's reliable or not reliable it has to do with fairness that's what bruton is about and bruton was not overruled by crawford and exists today in fact there are many eleven circuit cases after mean you've got you've got your brief we've got we understand your case and we appreciate your argument mr d touching on and finished i tempted to finish when i stated to the court judge rosenthal question prior to going into that that there was a lack of evidence in the  case which related to the other arguments on the brief and i understand your honor has stated but the point is we had four really other arguments made i brought them up that i wanted to reach them in the opening and that was  two minutes now on and it is true that at the end of your opening argument you referred to the judgment of acquittal and i do think that and so i'll touch upon that quickly and then just really end up with the first argument a very simple was that the judgment of acquittal we made in or a tennis motion essentially because at the trial the victim that was stated was that mr bernard  the driver there was never a point in which mr meaning was had force pressed upon him was threatened was threatened with force was never in fear in order to sustain a conviction of the hobbs act you have to have some amount of force some form of violence what had occurred here was made you don't think that that there was the threat that might result from interfering with what's going on with his colleague is as enough or what happened with his colleague was a play it was a show was not in it he doesn't know that sure he doesn't know that but what was shocking at the trial because i was present there i was shocked i know the government was as when he asked mr meaney were you in fear and he said no he wasn't in fears long as he stayed inside the area where he was in the cab but the minute he left that or attempted to help a colleague who he believed could that he wasn't physically subjected to it at that moment but he certainly had the threat of being physically subjected to it core watching his colleague be injured even more yes your honor and  take that in light of everything else that was in this case that we put these arguments in the immigration evidence mr bray goes testimony all of those things there's two pieces and we cited that banner case in the rebuttal and i'd asked of course to look upon it because there was less evidence against