did this case deals with substantial evidence involving an identification from an eyewitness this eyewitness told the jury that he was driving south his wife was driving he was a passenger in the car he looked out his window and he could clearly see mr hurd clearly he saw the hard look in his eyes and the lighting was perfect that's what he took the fight to now does the sun set in the west where the east so if he's driving question what was your visibility at the time at this time of day at that time of year and serve it was around seven hundred and twenty dollars in the middle of summer it's bright out we were heading south so the sun was on our east so i was looking out the window to the west so it was very clear i mean it was very you couldn't ask for better right really so he's contrary to what instruction is not given that is there other evidence that supports besides that identification so in this case we clearly have a witness who observation would have been compromised by the setting sun in the west now the sun sets in the west in cedar rapids iowa just like it does everywhere we have two things that the government sites in his brief the st thing is the gun was registered to the cousin of the defendant well that's pretty important maybe when you look up the defendant's says he was a music maker lots of people were coming out of my house i have a very large family i have twenty five cousins we don't really know what that means cousins i never saw this gun to my cousin nothing about it i had it hidden in a box may have been at the residence but i think there was evidence that he had been down there maybe making music or doing something between the time the cousin got the gun in the town of  testified that yes over twenty five dollars cousins including the defendant davis testified that quote a lot of people had access to the basement because davis would be making music in the basement davis testified that he never told the defendant he owned or possessed a farm to his knowledge that define it had never seen that far davis testified that the defendant was never in the basement of the residents without davis present davis testified that the defendant never looked at the residence so we have th eyewitness testimony and then the other the only real other piece of evidence that the government has a testimony of the cousin president of the cornea davis is the test the cousin of the defendant who the gun was registered to what about clark i've been clark is a cooperate in witness for the government right he testified that he was shown a picture of the gun that was recovered from the scene have you ever seen this weapon yeah the defendant tried to sell it to me well then all that occurred in august of september september well that would have been one or two months after it had been seized by the police so we have all this and we have the defense requesting the uniform instruction from the circuit regarding eyewitness thousand and thirty dollars or three hundred dollars a one hundred interest ten thousand three hundred dollars because he was in financial trouble and look like somebody beat him up because he didn't pay ok what does that show could show circumstantially that it was  great injustice that can arise from identification after that in the united states versus green you want to talk about other evidence and united states versus green a circuit reverse and seventy nine was that that case nice or strange and since then there has been no case law from the circuit regarding instruction do you know why that is wait wait wait we have a couple of cases where we did affirm without the the accomplice with the person with whom he robbed the bank testified against him so the court found that that was sufficient independent evidence from the eyewitness identification and there's also a lot of information in there about when he  the money from the bank they die explode it in the in the bag and it was a an opinion written by judge woman and that opinion compared with the the dyed money that the defendant admitted why is that because the district courts have got the message loud and clear that when there is an issue regarding an eyewitness side of the case if you give the instruction and in this case we got no instruction in fact the court decided on the morning of the nd day of trial that no instruction was going to be given despite not having heard most of the government's case what did she say to her can you point us to the  probation officer who identified yes that's the senate one was the lady who was in the traffic accident nothing or saw nothing about the gun or the marijuana or the throwing right thing like that the rd one was the officer that found the marijuana and the th witness rowse the cop that did the show up identification they had heard the there had been no evidence presented regarding the eyewitness identification of that time am here on behalf of the united states your honor  agree that the standard of review is abuse of discretion which is not something that we agree on on all the issues in the case but we agree on the standard of review and we agree about the basic framework and legal analysis that the court has to apply to the post green decisions but what can kind of lays out for us on this jury instruction issue is if there's a if the eyewitness identification presents a serious question instruction and such or that it's a serious question why should the judge give the instruction well i should be discretionary i mean what's so prejudicial i mean what what's the harm to the government of this instruction this is a pro defense instruction in some way or i am just a neutral instruction about how to assess eyewitness testimony well one of the issues that the government took with the proposed instruction in this case was the same to su reasonable doubt and so the language of it somehow burden shifted the issue of the eyewitness identification into an element of the offense and that's what the government took issue with us we have no burden to prove that mr summers correctly identified the defendant and the jury is allowed to allow to weigh that evidence and mr summers credibility just like i would weigh any other evidence presented in the case and considering the totality and so i think there's a problem with the model instruction or at least the and i think the court could certainly entertain that i know that the defense makes several raises several issues about cross racial identification in this brave and the dangerous with that and and that has been well flushed out by a supreme court case you're talking about perry are talking about the concurrence and perrier the main opinion and i or read a believe it was just askin maine where she wrote the maine opinion and and i believe that she had paragraph well so this case so there is no it if we're going to impose a burden on the court to have a model instruction that doesn't exist then i don't think that standard is abuse of discretion then we have to go under a plain air analysis because how would it could have and the defense attorney could have asked for that and they didn't and i would argue that because the defense had a chance to submit that and asked for that they've waived the issue and then the court read it and analyzed it but the metaphor for it or forfeit and then requested by the defense specifically and because the defense had requested that instruction they were not allowed to object to it on appeal well that's that's different that's an invited error situation where if you ask for something you get what you asked for you can appeal it but if you just failed it is for something that's a th we typically can their point here so that might be applicable here if you're saying they didn't ask for the instruction without the reasonable doubt evidence that defendant was on that specific flight was the court reporter's identification of him when she was on that same flight with him and the opinion makes note about the specific way that the government charged that it was and did this defendant go to california it was was he was on this specific flight they count that was upheld and green is in fact the account that he was in california and all of california and met with a loan officer and his credit card was used i think for dinner or maybe a hotel purchase a rental car none of that evidence spoke to whether or not he took that specific flight number to california and fats the issue that court did not vacate the conviction on count two and allowed that conviction to stand even in the absence of the eye witness instruction and that's why it's really important to distinguish this issue the questions that you asked the defense counsel but as you actually noted that about the fact that this clarke was claiming that herd showed him the gun after the accident so my recollection is that clarke testified that it looked like the gun he showed him the gun is the torso forty five dollars handgun which is an extremely common gun so how do we know that he didn't get another forty five i'm just going by your brief it says clark identified the farm found in the foliage near the car as a firearm the defendant had once pulled out shown to clark and tried to sell clark is that you know august or september is already starting about that's of the green scenario well i think it's probably right in evidence that the defendant possesses firearms and i think that his prior possession and subsequent presidential and firearms on different occasions it's relevant evidence to his possession of a firearm out and throw it into the foliage the gun was located in immediately near his vehicle and the area of the accident when it was located the canine officer officer summer test of schuman testified that it was free of debris and dirt except for where the dog had put his nose and pa's so it's clean it had been there for a long time she also testified that the grass around where the firearm was located looked like it had been recently disturbed that it was green underneath and that if the gun had been there for a while she would have expected to see that more dead grass deborah shaw the girlfriend's mother gave very compelling testimony  that the defendant came to her she observed that she had been beat up and assaulted he gave her hospital discharge papers about the assault and he said that he was assaulted over a business debt and that he owed people money and he needed money immediately from her to pay this debt and that's wrong circumstantial evidence of his involvement in dealing drugs and then why he would subsequently need to possess a firearm to protect him know when when the government shut down last year and we skipped paychecks i owed my mortgage company money i have u s bank from my credit card and none of those companies ever came and threatened me with assaults if i didn't pay my also we haven't really talked about the jail call a lot and not of a lot in the government's brief but that is strong circumstantial evidence also he calls his girlfriend and says no way this idea is going to shake out because i had my hat on when i was at the side of the road and i took my had out and threw it in and so he's never going to be able to identify me those aren't the words of an innocent person those are the words of someone who knows that they are guilty or consciousness of guilt words and who are telling their girlfriend don't worry i got this i'm going to get out from under the these charges that strong circumstantial evidence you know was correct that there was also i haven't clark put him at the cousin's house in the basement that was mr clark in addition to testifying about buying marijuana from him i thought the cousin said anytime he was the basement he was the basement with the i think it's there that testimony i do think the cousin target conflict in the testimony then testimony putting him at the house because i don't think i've been clark said he was it was just the two of us there are alone but if there was a conflict then yes certainly the jury did resolve it and i want to spend a moment on that too because this defendant testified at trial this defendant put his version out of what happened and it is so incredible and the jury clearly disputed it and i'm going to get to everything i want to say but one of the things we're talking about the big  how incredible his testimony i counted last night when mr robert check did his cross examination this defendant responded approximately forty four times i don't know i don't remember  signature on it and he goes i don't know and so this that the incredibility of his testimony that the jury had a chance to hear the story and and the rest of the evidence and they they made the decision crowd reading evidence in that case other than well st of all we have two witnesses not just run but to me who saw this defendant commit arson and then we have a jail house admission by the defendant and so the government presented that cooperating witness so the court found and also it's going to court and not quote as far as this case is concerned we think the trial judge should have given the defendant requested instruction but in this case without strong crabbe writing of inside existed the court found that there was nowhere that last case i think that what about this concern that the instruction the trial counsel requested didn't fit if the eyewitness id was not the sole evidence  because it has that language about how you have to believe the eyewitness beyond a reasonable doubt to convict is it a valid point that trial counsel maybe should have amended the model to fit the case a little paragraph at the bottom of the page there seems to say the government has the burden of proving identity beyond the reason about no but if you go on it says you the jury must find must be says fied a reasonable doubt of the accuracy of the identification of the defendant i don't know if that refers specifically to the idea of the witness in context it could be read that way they model instruction quote you the jury must be satisfied beyond a reasonable doubt of the accuracy of the identification of the document or of the defendant you know before you may find him guilty so that's in the model instruction does that refer does that mean you have he says beyond reasonable doubt that the eyewitness was correct i don't know what the uniform instruction goes to but it's from my reading from the proposed instruction to the uniform and it's i think forbade him i know there i know that that was really the issue by not understanding well we'll  in terms of their characterization of the telephone call it so the defendant caught telling his girlfriend that guy is a liar that guy meaning the passer by when he identifies me and thirty to forty five minutes and then i took it off because i was sweating and then he shows up and identifies me with know how to on how can that be he's lying and so let's let's let's look at that argument so for this to being incriminating evidence this defendant would have had to know that this passer by club the police and said i saw a guy with a hat on or through a gun thank you the argument thank you the case is submitted and the choral file an opinion in course that concludes the argument calendar for this morning court will be in recess until further call of the