[00:00:00] Speaker 03: Case number 24-3048, United States of America versus Artie Byrd, at balance. [00:00:07] Speaker 04: Ms. [00:00:07] Speaker 04: Bhatti, party at balance. [00:00:09] Speaker 04: Mr. Hobel, party at belief. [00:00:11] Speaker 01: Ms. [00:00:11] Speaker 01: Bhatti, good morning. [00:00:13] Speaker 04: Good morning. [00:00:15] Speaker 04: Good morning, may it please the court. [00:00:16] Speaker 04: Mr. Bhatti from the Federal Public Defender's Office on behalf of Mr. Artie Byrd. [00:00:20] Speaker 04: I'd like to reserve two minutes for rebuttal. [00:00:22] Speaker 04: Mr. Byrd appeals his conviction and the reasonableness of his above-guidelines sentence on various grounds. [00:00:27] Speaker 04: I'd like to begin with the procedural unreasonableness of his sentence, which more than doubled the median for similarly situated defendants. [00:00:34] Speaker 04: The court justified its upwards variance on two grounds. [00:00:37] Speaker 04: First, by relying on conduct that Mr. Bird was acquitted of in a completely unrelated case from Superior Court over which the sentencing judge did not preside. [00:00:47] Speaker 04: And second, by concluding that Mr. Bird's criminal history understated his, quote, dangerousness, and neither ground was justified. [00:00:54] Speaker 04: With respect to acquitted conduct, [00:00:56] Speaker 01: Sorry, how do you get the more than doubled? [00:00:59] Speaker 01: I'm sorry. [00:00:59] Speaker 01: How do you get? [00:01:00] Speaker 01: You said more than doubled. [00:01:02] Speaker 04: The median for similarly situated defendants was 35 months. [00:01:07] Speaker 04: And the court sentenced Mr. Bird to 72 months. [00:01:10] Speaker 01: Guideline range is 41 to 51. [00:01:12] Speaker 01: That's correct. [00:01:13] Speaker 01: Right? [00:01:14] Speaker 04: That's correct. [00:01:15] Speaker 04: And the median was for individuals in the same criminal history with the same base offense at all. [00:01:22] Speaker 04: The court's use of acquittals on it. [00:01:24] Speaker 03: So people are downwardly [00:01:27] Speaker 04: The median sentence was yes, the mean was 42 months. [00:01:32] Speaker 04: Presumably there are outlying individuals that skew the average upwards and so the median was 35 months. [00:01:48] Speaker 03: OK, that confuses me. [00:01:50] Speaker 04: I'm happy to explain it further if the court would want. [00:01:54] Speaker 04: So the court's use of acquitted conduct was problematic in three ways. [00:01:57] Speaker 04: First, because acquitted conduct sentencing is unconstitutional, and particularly in a situation like this, where the acquitted conduct was completely unrelated to the offense of conviction, and the district court did not preside over that unrelated case. [00:02:12] Speaker 03: So my understanding is that acquitted conduct [00:02:16] Speaker 03: is permissibly considered. [00:02:18] Speaker 03: There's precedent to that effect. [00:02:19] Speaker 03: I understand if you're trying to preserve a challenge to that. [00:02:22] Speaker 03: But is there any authority about whether that acquitted conduct has to be related to the case before the court? [00:02:29] Speaker 04: Sure, Your Honor. [00:02:30] Speaker 04: We would start with Watts itself. [00:02:32] Speaker 04: Watts is the grandfather of all of these cases. [00:02:34] Speaker 04: And Watts itself was a fairly narrow decision. [00:02:37] Speaker 04: Watts considered a double jeopardy challenge to the quintessential acquitted conduct case. [00:02:43] Speaker 04: In that case, the individual was convicted of possession with intent to distribute, acquitted of having a firearm in association with that offense. [00:02:54] Speaker 04: and the judge found by preponderance that the individual did have a firearm in association with the possession offense and therefore enhanced his guideline range. [00:03:02] Speaker 03: But does that mean that you can't? [00:03:05] Speaker 03: consider acquitted conduct that was not before the court in the case so far? [00:03:09] Speaker 04: So the way that Watts justified its decision in the double jeopardy context was to say that a sentence based on the acquitted conduct does not punish a defendant for crimes of which he was not convicted, but rather increases his sentence based on the manner in which he was convicted of the crime of conviction. [00:03:28] Speaker 04: So the court was distinguishing [00:03:30] Speaker 04: the manner in which a situation in which the the acquitted conduct had something to do with the manner in which the convicted conduct took place rather than simply the individual. [00:03:42] Speaker 03: If that's one permissible way to do it, does that mean you can't do it in these other ways? [00:03:48] Speaker 03: Because since Watts, I don't think it has to necessarily be the way you're positing. [00:03:54] Speaker 04: So Watts involved that situation. [00:03:56] Speaker 04: Settles involved the same exact fact pattern. [00:03:59] Speaker 04: And every case that followed in this circuit, every case that the government cites in their brief, and all of that Watts settles lineage involves cases in which the conduct is related somehow, and the district court has presided over that unrelated case. [00:04:16] Speaker 03: But there is no case that's directly on point that says you can only [00:04:21] Speaker 03: do it the way you say, and you cannot do it the way the district court did it. [00:04:26] Speaker 04: Perhaps because it's such an egregious way to do it the way that the district court did, because the district court did not. [00:04:32] Speaker 03: I'm sorry, but is your answer that there is no direct? [00:04:34] Speaker 04: I have not seen a single case involving the use of unrelated conduct where the sentencing judge did not preside over that unrelated case. [00:04:42] Speaker 03: And I'll just note, I know that you think it's egregious, but having presided over a lot of trials, and especially in the Superior Court, this is not an uncommon thing to do up there. [00:04:57] Speaker 04: Well, even if the court were to think that this is, in general, an uncommon thing to do, the way that the judge did so is how? [00:05:05] Speaker 03: I'm just saying you're saying it's egregious, but I'm saying it happens a lot. [00:05:09] Speaker 03: that the government, I guess it's the same as attorney's office, they will provide evidence of [00:05:16] Speaker 03: acquitted conduct from an unrelated case and say that it was proved by preponderance and you can consider it, that that's a very, in my experience, not an uncommon thing to happen. [00:05:27] Speaker 04: So in that situation, obviously there are all the problems that many courts and judges have opined on. [00:05:36] Speaker 03: I guess part of it is it's happening a lot, but you don't know of any cases that say you can't do that. [00:05:42] Speaker 03: This would be the first. [00:05:45] Speaker 04: So yes, I have not seen cases involving that. [00:05:49] Speaker 04: And in addition to that, I would say, particularly in the manner that the judge did here, where he did not preside over that unrelated case and involved and obviously had not seen these witnesses. [00:06:05] Speaker 04: The government did not call the witnesses. [00:06:07] Speaker 04: The court did not examine the witnesses. [00:06:08] Speaker 04: And there were active [00:06:09] Speaker 04: their testimony was actively contested by the defense. [00:06:13] Speaker 03: No, I understand that everything that you're saying, I'm just saying that I think it happens a lot. [00:06:17] Speaker 03: And I think that district judges typically don't, or trial judges typically don't hear testimony, et cetera, when it does happen, because it's only by preponderance of the evidence, which is a low bar. [00:06:28] Speaker 03: So transcripts, et cetera, are often consulted when this happens. [00:06:36] Speaker 04: Your honor may be correct. [00:06:39] Speaker 04: We would still say that the procedural issues that were present in this case involving the courts using the cold transcript to credit some testimony from an individual whose reliability was contested and without reason dismissing these other aspects of his testimony, which were problematic. [00:07:00] Speaker 04: For example, crediting the unsworn single photo array identification of Mr. Bird. [00:07:06] Speaker 04: And as opposed to the in court failed identification without explaining why one was more persuasive than the other, attributing the statement, take that loss like a champ, which- But the same clearly erroneous abusive discretion type standard, right? [00:07:22] Speaker 03: I mean, can't fly spec credibility determinations. [00:07:25] Speaker 03: I'm sorry? [00:07:26] Speaker 03: We can't fly spec credibility determinations like that. [00:07:28] Speaker 04: Well, the court is obligated to consider the conflicting evidence and to explain why the court is deciding to use one identification over another or to attribute the statement as a basis for intent to Mr. Burt. [00:07:46] Speaker 04: to Mr. Chambers when dismissing an entirely contradictory statement. [00:07:51] Speaker 04: And there were a number of issues with Chambers' testimony that we highlight. [00:07:57] Speaker 04: And the court at no point tried to distinguish that contradictory evidence. [00:08:03] Speaker 04: And I think that's a problem. [00:08:04] Speaker 04: And we would refer the court to the Barker decision, where the Seventh Circuit indicated that the judge has an obligation to do a searching inquiry into the contradictory evidence and distinguish it. [00:08:16] Speaker 04: And the court did not do that here. [00:08:18] Speaker 04: So as a procedural matter, even if the court decides that constitutionally this was permissible, procedurally this was an abuse of discretion. [00:08:26] Speaker 04: And then taking it a step further, we still think that the preponderance standard was not satisfied. [00:08:35] Speaker 04: None of the evidence here was uncorroborated. [00:08:38] Speaker 04: and or unsworn hearsay with no other marks of reliability. [00:08:43] Speaker 04: In that way, it's very similar to the Rivera Ruiz decision from the first circuit where the court found that findings based solely on unreliable evidence cannot establish a preponderance standard. [00:08:55] Speaker 04: So we would refer the court to that decision. [00:08:57] Speaker 01: We're still reviewing for clear error. [00:09:00] Speaker 01: right? [00:09:01] Speaker 04: Right. [00:09:01] Speaker 04: And and Rivera Ruiz said that because this unreliable evidence can't establish a preponderance, it is therefore clearly erroneous. [00:09:10] Speaker 04: So, for that reason, because it can't establish a preponderance, it is clear error. [00:09:14] Speaker 04: I would just wanted to also speak briefly about the the other procedural unreasonableness [00:09:23] Speaker 04: issues that we have raised in our brief, which, namely, the court never distinguished this case from the mine run, so the universe of similarly situated defendants. [00:09:37] Speaker 04: We think that was also an issue. [00:09:38] Speaker 04: At no point did the court explain the degree of variance adequately. [00:09:44] Speaker 04: And so we would also ask this court to consider that as an abuse of discretion by the district court. [00:09:52] Speaker 01: Is there any on the second amendment question? [00:09:55] Speaker 01: Is there any feature of this case that's different from the one? [00:10:01] Speaker 01: We just argued. [00:10:02] Speaker 01: I don't know if you heard the argument. [00:10:04] Speaker 04: Yes, I did. [00:10:05] Speaker 04: I would just point out that Mr. Byrd's predicate offense is what the district court called a juvenile adjudication. [00:10:12] Speaker 04: And the court has not provided, the government has not provided any historical analog for lifetime disarmament based on a juvenile adjudication. [00:10:22] Speaker 01: Thank you. [00:10:28] Speaker 01: We'll give you the bottle. [00:10:43] Speaker 01: You're compelled. [00:10:44] Speaker 02: Good morning, and may it please the court, the district court, Marco Bell for the United States. [00:10:50] Speaker 02: The district court did not abuse its discretion procedurally or substantively in imposing a 21-month upward variance, that's less than two years, for a third felon in possession offense committed while unsupervised, released for the second by a defendant with a history of committing violent crimes that was not fully accounted for in his guidelines with a criminal history score. [00:11:13] Speaker 02: the district court here properly considered the acquitted conduct underlying birds acquittal for accessory after the fact with two percent assault with intent to kill while armed in superior court. [00:11:29] Speaker 02: In terms of precedent for handling unrelated conduct that's acquitted under Watts, we'd refer the court to Watts itself and the reasoning there. [00:11:45] Speaker 02: One, in fact, it began its analysis with that statute, which says no limitation shall be placed on information concerning the background character and conduct of a person convicted of an offense for the purpose of imposing an appropriate sentence. [00:11:59] Speaker 02: The court also relied on Williams v. New York. [00:12:03] Speaker 02: in which a sentencing judge had relied on 30 uncharged burglaries and out-of-court evidence of that to impose the death penalty in the New York case. [00:12:13] Speaker 02: And so Watts summarized 3661, and Williams is, neither the broad language of 3661 nor our holding in Williams suggests any basis for the courts to invent a blanket prohibition against considering certain types of evidence [00:12:28] Speaker 02: at sentencing. [00:12:29] Speaker 02: So, we think the logic of Watts fully supports what the district court did here and completely refuse this artificial distinction between related and unrelated acquitted conduct for purposes of sentencing the 3553 factors. [00:12:46] Speaker 01: I would direct this court to... Is there any limit on the position you're advocating? [00:12:53] Speaker 01: I mean, Watts was a couple of decades ago and we have [00:12:59] Speaker 01: Prendy jurisprudence and increasing emphasis on the need for jury findings and the need for pure proof beyond a reasonable doubt. [00:13:09] Speaker 01: At some point, right. [00:13:11] Speaker 01: Does it not not with too much like you're really sentencing. [00:13:17] Speaker 01: based on district court fact-finding by a preponderance. [00:13:21] Speaker 02: I mean, notwithstanding the language of 3661, which literally says no limitation shall be placed on the information a district court may receive, there are limitations and safeguards in place that it has to be proved by a preponderance of the evidence. [00:13:39] Speaker 02: there are numerous procedural, it has to be explained procedurally to support a variance. [00:13:47] Speaker 02: And of course, although it doesn't, it's not necessarily, it's not relevant here because this was not a guideline sentence. [00:13:54] Speaker 02: In fact, the guidelines, the Sentencing Commission just [00:13:59] Speaker 02: change the policy statement and the guidelines to what, but my understanding is to make it more difficult to consider. [00:14:08] Speaker 02: Yes, correct. [00:14:10] Speaker 02: So there are limits, but again, going back to the, [00:14:15] Speaker 02: The logic of Watts in the cases this court has applied, Watts and Lake settles, is that there is a broad range of information a sentencing court can consider in imposing a just sentence for the individual. [00:14:30] Speaker 02: And in this case, this was a trial in Superior Court that took place literally right before the retrial in federal court on the felon in possession case. [00:14:40] Speaker 02: And it was information that directly [00:14:44] Speaker 02: refuted some of the arguments that the Fed that that that Mister Bird made it sentencing that he only armed himself in self-defense that he was that this was a that he was that he had armed himself because of traumatic experience he had after he'd been released from prison on his [00:15:01] Speaker 02: on his on his previous felony and possession conviction. [00:15:04] Speaker 02: So, it was directly relevant to the sentencing decision. [00:15:06] Speaker 02: It was important to share this with the with the court and the court made the proper findings and found by proponency evidence and its findings were not clearly erroneous. [00:15:17] Speaker 02: And it fully explained why it credited the identification by the victims remain chambers in the case. [00:15:27] Speaker 03: It did the same district judge preside over the first trial. [00:15:32] Speaker 02: No, no. [00:15:33] Speaker 02: So that was, I believe it was Judge Raffin and Superior Court presided over the eight-wick while armed. [00:15:38] Speaker 03: No, no. [00:15:38] Speaker 03: I mean, there was a hung jury in this case, correct? [00:15:42] Speaker 03: Correct, yes. [00:15:43] Speaker 03: Was it the same federal district judge presided over the first case where the jury was hung? [00:15:49] Speaker 02: Yes, it was Judge McFadden in both cases. [00:15:52] Speaker 03: So this is bringing to his attention something that happened in between the first and second trials that came before him. [00:15:57] Speaker 02: That's right. [00:15:58] Speaker 03: I believe that that makes it, I think, even more relevant, doesn't it, to the sentencing? [00:16:05] Speaker 02: Yes. [00:16:05] Speaker 02: I mean, I think it was it was directly relevant. [00:16:09] Speaker 03: It was certainly, you know, because it was on release in Judge McFadden's case then when this happened. [00:16:16] Speaker 02: Oh, no, I'm sorry. [00:16:17] Speaker 02: No. [00:16:17] Speaker 02: So because of the pandemic, a lot of these trials were delayed. [00:16:21] Speaker 02: So the AWIC, the conduct underlying the AWIC accessory acquittal, that took place I believe in 2019. [00:16:28] Speaker 02: Sorry, AWIC? [00:16:30] Speaker 02: I'm sorry. [00:16:31] Speaker 02: Assault with intent to kill while armed. [00:16:35] Speaker 02: So I'm lapsing into my DC code Superior Court speak. [00:16:39] Speaker 02: I'm sorry. [00:16:41] Speaker 02: So that occurred in 2019. [00:16:44] Speaker 02: That occurred before Mr. Bird's second felon in possession conviction. [00:16:48] Speaker 02: But the trial in that case in Superior Court occurred in the same month immediately before [00:16:58] Speaker 02: the retrial in this case, if that chronology makes sense. [00:17:04] Speaker 03: So the conduct occurred before the first trial, but the retrial occurred, I'm sorry. [00:17:08] Speaker 03: I'm just trying to understand from Judge McFadden's point of view, how these events related to the fact that there was a trial and then a period and then a second trial. [00:17:23] Speaker 03: This defendant was on release in Judge McFadden's case for some period of time, but you're saying the AWIC occurred before even the first trial in this case. [00:17:33] Speaker 03: Correct. [00:17:34] Speaker 03: So what is it that happened right before the second trial? [00:17:37] Speaker 02: It was the trial for the conduct in superior court. [00:17:43] Speaker 02: Oh, so the acquittal. [00:17:45] Speaker 02: Yes, the acquittal. [00:17:46] Speaker 02: I see. [00:17:46] Speaker 02: I see. [00:17:46] Speaker 02: I'm sorry for any confusion there. [00:17:48] Speaker 03: No, that's okay. [00:17:48] Speaker 03: That's okay. [00:17:49] Speaker 03: I'm just thinking from the point of view of a sentencing judge, while you were on release in my case, you went on trial in superior court and you were acquitted, but it just seems [00:18:01] Speaker 03: It's not a completely unrelated thing. [00:18:03] Speaker 03: Just temporally, you are on release in my case as the federal district court judge when you got acquitted. [00:18:10] Speaker 03: And so for the government to bring to my attention that what happened in that trial does not necessarily exonerate the defendant who's being sentenced before me. [00:18:20] Speaker 03: It just seems extremely relevant based on that timing. [00:18:24] Speaker 02: I think that's right. [00:18:25] Speaker 02: It goes really to the history and characteristics of the defendant. [00:18:30] Speaker 00: But counsel's point stands correct that Judge McFadden did not try the case on which he's drawing. [00:18:37] Speaker 02: That's correct. [00:18:40] Speaker 02: But sentencing courts frequently are called upon to rely on hearsay. [00:18:46] Speaker 02: And we cited to this court's Preston and Miller, which is one of many presidents that say that hearsay is admissible in a sentencing proceeding. [00:18:54] Speaker 02: And in this case, there was reliable hearsay. [00:18:56] Speaker 02: It doesn't [00:18:57] Speaker 02: get more reliable than sworn testimony that's subject to cross-examination in a recent prior trial. [00:19:03] Speaker 02: So Judge McFadden carefully reviewed the trial transcripts, the grand jury transcripts, the evidence in that case and made findings that were not clearly erroneous. [00:19:14] Speaker 02: I would point out just as a factual matter, there's been, in Mr. Bird's reply brief, there was a suggestion that [00:19:24] Speaker 02: our proffer that Bird did not work at United Masonry with the victim, it was not as coordinated, that that was not supported. [00:19:37] Speaker 02: I would direct the court to page 19 of the PSR in this case in which Bird [00:19:42] Speaker 02: admitted that he worked at United Masonry from January to April 2019, which is entirely consistent with the victim's testimony in the AWIC, the AWIC well-armed accessory case about who AR was, the person who was involved in the robbery and the shooting. [00:19:58] Speaker 02: And then just briefly, very briefly on the second amendment point, just to loop it back into the case before us. [00:20:06] Speaker 02: This case, this defendant, Mr. Bird was on supervised release, just like Mr. Richardson. [00:20:12] Speaker 02: So to the extent that the court were to embrace that sort of narrow logic that your honor Judge Katz has alluded to in that case, it would cover Mr. Bird's case as well. [00:20:22] Speaker 02: So unless the court has any further questions, we would ask the court to affirm. [00:20:26] Speaker 02: Thank you. [00:20:26] Speaker 02: Thank you. [00:20:31] Speaker 01: Ms. [00:20:31] Speaker 01: Beatty, we'll give you two minutes. [00:20:34] Speaker 04: Thank you. [00:20:35] Speaker 04: I just wanted to point out a couple of things. [00:20:38] Speaker 04: One, in the denial of cert in McClinton, which was the case involving acquitted conduct where four Supreme Court justices explicitly stated their overriding concerns with acquitted conduct sentencing but decided not to grant cert because the sentencing commission was actively considering the issue. [00:20:58] Speaker 04: There's an important sentence in Justice Sotomayor's statement, which is, [00:21:02] Speaker 04: The fact that even though a jury's specific reasons for an acquittal will typically be unknown, the jury has formally and finally determined that the defendant will not be held criminally culpable for the conduct at issue. [00:21:13] Speaker 04: And here we have that exact situation where the jury decided that Mr. Byrd would not be held criminally culpable. [00:21:19] Speaker 04: The government comes to this court and decides to hold him criminally culpable for that conduct expressly. [00:21:26] Speaker 03: I guess he's held culpable for what he's being sentenced for, but within the range, it's a factor that can be considered. [00:21:31] Speaker 03: Is that analytically what's happening? [00:21:33] Speaker 03: I'm sorry, can you repeat that? [00:21:36] Speaker 03: He's he's criminally culpable for the crime of conviction and he's being sentenced and [00:21:42] Speaker 03: I guess the case law says you can look at anything and deciding what's the correct and reasonable sentence within the range. [00:21:50] Speaker 03: And this is just one factor. [00:21:52] Speaker 03: So it's not the same as sentencing him for the acquitted conduct. [00:21:57] Speaker 03: It's determining the sentence for the crime of conviction and using this as a factor. [00:22:02] Speaker 04: So here, again, we go back to Watts and how this all started, right? [00:22:06] Speaker 04: But the statement by Justice Sotomayor expressed, I mean, this is the crux of the issue with acquitted conduct sentencing. [00:22:12] Speaker 03: I'm interested in, I guess, your views of somebody like Al Capone. [00:22:17] Speaker 03: He was convicted of tax evasion despite committing lots and lots of murders and other things because he was a mafia boss. [00:22:25] Speaker 03: And then he gets the highest sentence ever for tax evasion. [00:22:30] Speaker 03: Do you think that was improper? [00:22:32] Speaker 03: This is a completely different scenario. [00:22:35] Speaker 03: In general, I think that they consider the acquitted conduct. [00:22:38] Speaker 04: I don't know if they considered his acquitted conduct that was in any way related to his other conduct. [00:22:42] Speaker 04: Assume it wasn't. [00:22:45] Speaker 04: I don't think it was. [00:22:46] Speaker 04: Then it's a problem. [00:22:48] Speaker 04: I mean, acquitted conduct sentencing in general is a problem for all the reasons that Justice Sotomayor identified in her statement in McClinton. [00:22:54] Speaker 04: It's particularly a problem here where we have Mr. Burt acquitted in Superior Court [00:23:00] Speaker 04: The jury has closed the door on punishment. [00:23:02] Speaker 04: The government comes here and the district court expressly enhances his sentence based on the uncounted district court's words uncounted um uh so there's no situation for the situation. [00:23:14] Speaker 03: I'm I'm just I know I know this is [00:23:17] Speaker 03: This is just kind of a theoretical question. [00:23:18] Speaker 03: So you're thinking that in no situation is it ever appropriate, like even for Al Capone, who they were not able to convict on murders that. [00:23:27] Speaker 03: Let's assume he didn't commit and they can only get him on tax evasion. [00:23:31] Speaker 03: I think they can't consider the murders. [00:23:33] Speaker 04: I would say yes to that situation for, again, all the reasons that Justice Sotomayor and Justice Kavanaugh and Justice Barrett and Justice Gorsuch have all expressed. [00:23:42] Speaker 04: And I would say, particularly in this type of a situation, it's especially egregious. [00:23:46] Speaker 04: And I wanted to just point out a couple more things. [00:23:48] Speaker 04: The government's logic that there's no restriction based on the language of 3661 on what a court can consider in sentencing would really know no bounds. [00:23:59] Speaker 04: That's not the law. [00:24:00] Speaker 04: We know that the Sixth Amendment applies. [00:24:02] Speaker 04: We know that the Fifth Amendment applies. [00:24:03] Speaker 04: We know that hearsay must be reliable. [00:24:05] Speaker 04: We know that the defendant cannot be sentenced based on inaccurate information or speculation. [00:24:10] Speaker 04: And here, that's what happened. [00:24:12] Speaker 04: There's nothing that connected AR to Mr. Byrd outside of chambers unsworn. [00:24:16] Speaker 04: single array photo identification in the hospital. [00:24:20] Speaker 04: Um the the the testimony from Eric Rubio never connected AR to Mr Bird. [00:24:25] Speaker 04: This was a classic case of misidentification and and I mean for all the reasons that we've already stated in our breach, there's a there's a huge problem with using this because what it boiled down to was the was the district court [00:24:37] Speaker 04: speculating as to the reasons why that failed identification happened. [00:24:42] Speaker 04: Hairstyle change, passage of time, all those factors were put were expressly put in front of the jury and the jury rejected those those those reasons. [00:24:51] Speaker 04: So for those for that reason, we would say that this is an abuse of discretion by the district court. [00:24:56] Speaker 04: Yes, the district we asked this court to reverse. [00:24:59] Speaker 01: Thank you, counsel. [00:25:00] Speaker 01: The case is submitted.