morning morning your honour's lori occurred on behalf of the defendant appellant eric johnson i would like to reserve three minutes of my argument for a bottle thank you this case is before this court this morning for two reasons the first reason involves the expert testimony of detective sergeant lambert the district court primarily aired emitting this expert testimony after the government failed to give timely notice to defendant's counsel in violation of federal criminal procedure sixteen however if this court should find that the district court did not abuse its discretion and admitting sergeant lambert's testimony the presentation of his avid testimony excuse me is still flawed because the district court failed to issue a cautionary instruction to the rights well i think when you review the testimony sergeant lambert was the second witness in a very long trial and throughout the first grouping of testimony he would go between didn't allow for the jury to take the information as to what national gangs were doing and then apply as they heard other evidence throughout the trial to oh yeah ok well the national gangs do tags on lampposts we have now heard evidence from speaking members local youngstown please that they found l s p tagging zone lamppost well maybe ellis p is operating as again he didn't allow the jury to make that conclusion for themselves he sort of drew it for them at the very beginning of the trial and they had that was their understanding from the outset the government didn't set the basis for i thought that the some of these gang members themselves echoed a lot of  just separately say that was their code absolutely and i think if he had testified generically only and then they came in and filled in the blanks you don't have but isn't a jury going to find these things or believe these things anyway given that's my point i mean so like the jury's reaching a conclusion they wouldn't otherwise reach if he doesn't testimony i mean they were going to there's every reason to think they're going to conclude yeah these guys are somebody disrespect or whatever they're going to fight back and that's just sort of the code that they have to maintain but if they're tainted at the outset by someone the jury would already perceive as knowledgeable and that is telling the truth in that area they may not have paid much purview to what the gang members are saying ok and what is timely notice under the rule timely notice when there is no specific standard however if you compare other cases from this circuit and the district two three days before trial is not enough to put the defendant on notice that a certain witness is testifying as expert if you look at the witness list there were multiple police officers federal law enforcement agent agents testifying in this case there was in there was no indication in the discovery packet that sergeant lambert would be testifying as an expert and so it were tru why i think that the trial counsels intend if he had been granted a continuance or if he had been given even a month two months prior notice that sergeant lambert was the expert and what his expert testimony was going to be is that he would have sought out his own expert to combat some of the information that sergeant lambert would testify to any affidavit from any expert or anything t surgeon's testimony was not true my understanding is that he was given permission to seek out an expert i mean for purposes of asking for a new trial or covering was charged with using and carrying a firearm and furthers further in seven drug trafficking offense and maintaining a position in a gang and the jury instructions still instructor disjunctive there is your honor i understand your point about broader basis for but i mean there's cases you can do it so where we do it well i think you have to look at whether or not it goes to essential  of the crime i think you have to look at how what the grand jury was presented with and you know the statutory language is written in the disjunctive and the grand jury made a change to that structure in charge in the country and so the argument there would be is if they've made that change of the grand jury level in the evidence presented to the grand jury showed hughes and kerry and now we're brining the bases at trial because the testimony at trial maybe doesn't necessarily show it only showed use or care it didn't allow the change to allow the jury to convict him of a different friends than the offense he was charged with  oh that's not the offense this is the offense the jury found him guilty of the offense i mean there were there were correctly instructed on the actual  according to the century language is that what you have here if i understand yes yes i mean he went back to the statutory language with the grand jury indicted on the country well it just means that he had an even higher threshold for the grand jury that's all i mean it's you rob this woman and you kick your dog and that's the indictment and then when you go to trial the judge strikes and you kick right what i think under and i believe it's miller us female or that the removal of something from the indictment doesn't broaden it narrows and therefore it's not prejudicial so therefore you're taking away another element that the government would have to prove i put or maybe i misunderstand the facts but when you change from  k but the statute doesn't require is correct so that the grand jury chose to change that language which believe they were indicting on the net the use and carry that they heard evidence that he used and care ok but then i still don't understand why it matters because i think if you look at the testimony of the victims in this case and how it would apply when the jury is was used in his assault however there was evidence that a guy and may have bad and present during the entire exchange maybe not necessarily during the assault and so you have all that we can prove she used it but we can still pr carried it versus the jury would have to find he used it during the assault and carried it during the assault now they can pick case i'm going to but if but if the statute only requires one what is the what what's the problem what's the prejudice what's the legal prejudice if the statute only requires one with this one here can only charge but he wasn't charged that way he was charged  ok let me just think they're different choices than the under one twenty four c there's the use and carry of a firearm in furtherance of drug trafficking or crime of violence and instructed in his favor he would have had a better chance of acquittal but i still don't understand why it's of any legal significance because i i think that the overall fairness of the trial is affected when you brought on the base for a conviction on an essential element of the crime which you have here but was there any was he defending the trial on the basis that he carried but didn't use it and i don't believe so now your hon i see my time is almost up if you don't have any further questions hours of my time for rebuttal very well thank you and i think on the on the verdict form or everything i've said is in my briefing given by what the questions are i'd think i'd want to focus my argument on more of the expert witness fact witness issue if that's ok with the court  l you know i understand nine days sounds like a lot of time but when you've got like a fairly long complex you know trial well why why would you not let them know why wait to the last minute knew from the very beginning that he was charging a rico conspiracy with the l s p gang in the indictment the superseding indictment he knew it from the very beginning of this case he also knew that the gang the gang workings of the gang were going to be a major part of this trial and really look at lambert's testimony his expert testimony which was that when he was testified second on this government second witness i don't know what kind of that was only ever talked about was you know here's what i've done in my law enforcement career with gangs here's my training here's what i know here's what gangs do it wasn't about you know the engineering of a rocket that no it wasn't like a dog situation in which that came up a little bit in seven o two right very simple so right it's not it's not just his testimony it wasn't like the first time he got on the stand it was all expert and the second time it was all fact right the first time he was on it was all mixed up was in the i don't think it really was i mean the second time i think was clearly all faculty i mean there that was all just about here's what we did here's how we use this confidential informant here's what happened on the day that the confidential informant was discovered so the second one was off the first one the way i read it and i remember it was mostly him talking just about here's what games do here's what l s p does and talking about how they transition from graffiti to social media to you know state their their membership in allegiance to the gang and our reputation was important i mean that's all right but he said here's what gangs do and here's w also played to them he said that's what they do and that's you know a lot of times violence happens because they insult each other in social media and you know he didn't say anything specific that l s p at the insulted in his first you know when he first but in the subject matter of his testimony between his expert testimony in effect us and the money was testified the second time he was the fifty fourth witness and all he talked about that was clearly just factual i mean there is there is no expert testimony in there a you i'd like to touch briefly on the issue brought forth by the government in terms of the line of demarcation between sergeant lambert's two testimonies yes there was a significant break in between multiple witnesses however the line of demarcation doesn't necessarily just go with the number of witnesses it's how the testimony is broken up and if you look at both sets of testimony both of them are intermingled between generic gang information and what alice p does even in his first testimony there was he alluded to unsolved crimes unsolved murders that alice p would have done in retaliation against other youngstown gangs or in furtherance of their own game and i feel like again it just tainted the jury from the outset this information and then when he testifies the second time the government doesn't make any clear in the delineation that the first time you testified you were testifying in your area of expertise as if as an expert this time you're testifying as your investigation i feel like they're both intermingled and  expert prior to that the jury hadn't heard that word before defense counsel brought that up and then the second time he testified i do believe that i am not sure if it was appellant johnson's defense counsel or one of the others that brought it to the jury that said oh you have testified previously as an expert and now you're testifying that it's the government's responsibility to make that line of demarcation for the jury not defense counsel